Friday, January 23, 2009

OTTAWA - Today, Democracy Watch called on MPs and Senators from all political parties to re-file the request for an investigation and ruling it filed in November 2007 with federal Conflict of Interest and Ethics Commissioner Mary Dawson.  The request questioned whether Prime Minister Stephen Harper and some of his Cabinet ministers were in violation of the Conflict of Interest Act when they discussed and chose whether an inquiry into the Mulroney-Schreiber situation would take place; set the terms of reference for the inquiry; chose the inquiry commissioner who will judge their own actions and Mr. Mulroney's actions, and; continued to control legal proceedings against Karlheinz Schreiber even though he made allegations about them.

Democracy Watch has been forced to appeal to MPs and Senators to re-file the request with the Commissioner because the Federal Court of Appeal ruled Wednesday, after cutting the court hearing short, that the Ethics Commissioner is not required to enforce the Act if evidence and a request for an investigation and ruling is sent to her by a member of the public.  (To see the Court of Appeal ruling, click here (PDF) or click here (Federal Court of Appeal website version).

Even though the purpose of the Act is to "establish clear conflict of interest" rules and to "minimize the possibility of conflicts" and to give the Commissioner "the mandate" to "determine whether a contravention" has occurred (as set out in section 3), the Court of Appeal ruled that the Commissioner is only required to determine whether a contravention has occurred if an MP or Senator requests that she make such a determination.

While Democracy Watch considers filing for leave to appeal the ruling to the Supreme Court of Canada, Democracy Watch also called on MPs and Senators to pass a bill as soon as possible changing the Conflict of Interest Act to give the public the right to file and have their complaints investigated and ruled on by the Commissioner, and to require the Commissioner to investigate and rule publicly on every situation she learns about that presents clear evidence that a Cabinet minister, ministerial staff or senior government official may be in a conflict of interest.

"It is outrageous in 2009 in a country that calls itself a democracy that the public has no right to file ethics complaints about the most powerful federal politicians and government officials in Canada, and that the Ethics Commissioner has no duty to investigate and rule on complaints even when presented with clear evidence of a violation of the key ethics law,"  said Duff Conacher, Coordinator of Democracy Watch.

The Court of Appeal also made the extraordinary ruling that the 7-page letter the Commissioner sent in January 2008 to Democracy Watch in response to its November 2007 complaint, which ruled that neither the Prime Minister nor any minister or government official was in a conflict of interest concerning the Mulroney-Schreiber situation (a ruling based entirely on the Commissioner's very restrictive and highly questionable interpretation of key measures in the Conflict of Interest Act) was not a legal ruling but only her opinion which could change based on future evidence.

"The Federal Court of Appeal has undermined the enforcement of the federal ethics law by ruling that the federal Ethics Commissioner can ignore clear evidence of a conflict of interest and has no duty to enforce the federal ethics law, and that even if the Commissioner makes a decision based on a highly questionable interpretation of the law, the Court will not review her decision,"  said Conacher.

Democracy Watch's position in the case was that when Canadians face allegations about themselves or their associates, they are not allowed to decide the scope of the investigation nor to choose their own investigator and judge, and neither should the Prime Minister, Cabinet ministers or any other politician or government official.

Democracy Watch's position was also that the complaint system violates the public's rights under the Canadian Charter of Rights and Freedoms because it forces them to associate with a partisan politician in order to have a complaint examined, and also taints the complaint process with unnecessary partisanship.

"It is an undemocratic and unconstitutional barrier to effective good government to force the public to find a MP or senator and convince them to file a complaint about a Cabinet minister, staff or appointee violating key ethics rules in order to ensure the complaint will be examined by the Ethics Commissioner," said Conacher.  "The public is the boss of all of these people, and as the boss should not be required to go through one of its employees in order to ensure its complaint about another employee is examined by a third employee."

The Federal Court of Appeal ruled that it was improper for Democracy Watch to raise this issue in the case.

• To see Democracy Watch's November 26, 2007 complaint letter about the alleged conflict of interest, click here
  
• To see the Ethics Commissioner's January 7, 2008 ruling, click here (PDF format)
• NOTE: Democracy Watch wrote back to the Ethics Commissioner on January 9, 2008 asking her to reconsider her ruling, but she refused to do so -- To see details, click here (PDF format)
• To see Democracy Watch's court application, click here (PDF format -- NOTE: the case file number has changed since the application was filed and is now A-174-08)
  
• To see Democracy Watch's legal arguments for the case, click here (PDF format)
  

In May 2008, Ethics Commissioner Dawson ruled that then-Liberal MP Robert Thibault was in a conflict of interest when he asked Mr. Mulroney questions in a parliamentary committee because Mr. Mulroney had filed a lawsuit against him demanding Mr. Thibault pay more than $2 million for making libellous comments on TV about Mr. Mulroney. (To see the Ethics Commissioner's ruling on Thibeault, click here)  This was a legally correct ruling based on the rules in the Conflict of Interest Code for Members of the House of Commons (which came into force in October 2004) that say you can’t take part in discussions or decisions on matters that affect your private financial interests.  The ruling was a welcome change from the past ridiculous rulings of former Ethics Counsellor Howard Wilson and former Ethics Commissioner Bernard Shapiro, who almost always did everything they could to ignore ethics rules and let people off the hook even when they had clearly violated ethics rules.

However, Commissioner Dawson’s May 2008 ruling on then-Liberal MP Thibault highlighted just how legally incorrect her January 2008 ruling on Prime Minister Harper and his Cabinet was. 

Commissioner Dawson's position in the case was that she did not even make a ruling concerning the Prime Minister and his Cabinet ministers, even though she sent the January 2008 ruling in writing to Democracy Watch in response to the complaint it filed with her on November 26, 2007, and even though the ruling sets out 12 decisions that lead to Commissioner Dawson’s overall conclusion that it was not within her jurisdiction to investigate the Prime Minister and his Cabinet ministers, let alone to find them in a conflict of interest with regard to the Mulroney-Schreiber situation.

“It is unethical for the federal Ethics Commissioner to uphold or ignore ethics rules depending on whom the Commissioner’s ruling affects, and very unfortunately this is what seems to have happened with the Commissioner’s rulings that former Liberal MP Thibault was in a conflict of interest concerning the Mulroney-Schreiber situation but Prime Minister Harper and his Cabinet ministers are not,” said Duff Conacher, Coordinator of Democracy Watch.

Even Prime Minister Stephen Harper acknowledged, and stated publicly in November 2007, that he and all members of his government are in a conflict of interest concerning the Brian Mulroney-Karlheinz Schreiber situation, given that: Mr. Mulroney acted until fall 2007 as an adviser to the Prime Minister; Mr. Schreiber sent documents to the Prime Minister and named him in a court affidavit, and; the government was involved in legal proceedings to extradite Mr. Schreiber to Germany. 

However, despite recognizing their own conflict of interest in November 2007, Mr. Harper along with his Cabinet went on to make at least six decisions about the investigation of the Mulroney-Schreiber situation, and continued to discuss the situation, including making statements during several 2007 year-end interviews with the media (Transcript of relevant part of Prime Minister Stephen Harper’s interview with CBC-TV -- Transcript of Prime Minister Stephen Harper’s interview with CTV).

Democracy Watch's position is that Ethics Commissioner Mary Dawson’s January 2008 ruling let Prime Minister Harper and his Cabinet ministers and Cabinet staff off the hook by ignoring clear measures in the Conflict of Interest Act, well-established legal standards, and the public interest, leading her to reach the following conclusions which Democracy Watch believes are legally incorrect:

• she decided that “private interest” under the Act does not include an interest in protecting your reputation or your position in Cabinet (even though the Act does not limit the definition of private interest in this way);
• she decided that “a financial or business interest or some other interest” (she didn’t define what other interest) has to be involved in order for their to be a conflict of interest (even though the Act does not mention these types of interests);
• she ignored the measure in the Act that says ministers, their staff and senior government officials are in a conflict of interest when they have “an opportunity” to further their private interests, or the interests of a relative or friend and, instead, she claimed that she must have evidence that they have actually furthered their own or another person’s interests (even though the Act does not require this at all);
• she went even further and claimed that she would have to have “evidence of impropriety” in order to investigate a situation (even though the Act does not require such evidence);
• she didn’t even consider the question of whether Mr. Mulroney is a “friend” of Prime Minister Harper and various members of his Cabinet or their staff (Democracy Watch’s position is that there is ample evidence that Mr. Mulroney is a friend);
• she also didn’t even consider the question that if Prime Minister Harper is in a conflict of interest, are all members of his Cabinet and their staff, and “at pleasure” senior government officials, also automatically in a conflict of interest (given that the Prime Minister can fire all of them at any time for any reason)?;
• she ignored the main purposes of the Act, namely to “(a) establish clear conflict of interest and post-employment rules for public office holders; (b) minimize the possibility of conflicts arising between the private interests and public duties of public office holders and provide for the resolution of those conflicts in the public interest . . .”, and;
• she concluded based upon the above decisions that neither Prime Minister Harper, nor any other Cabinet minister, Cabinet staff, nor senior government official is within her jurisdiction to investigate to determine whether they are in a conflict of interest, and whether they have to remove themselves from decision-making about the Mulroney-Schreiber situation.

Democracy Watch was represented on a pro-bono basis in the case by the Ottawa law firm Hameed Farrokhzad Elgazzar Brousseau, and lawyer Peter Rosenthal of Toronto presented its case at the hearing.  The Federal Court of Appeal case file number is A-174-08.

Set out below are excerpts relevant to the Mulroney-Schreiber situation from the interview CBC TV's Peter Mansbridge conducted with Prime Minister Stephen Harper in December 2007:

Peter Mansbridge: "Schreiber-Mulroney affair.  Canadians have heard now from both the two principals in this over the last couple of weeks.  They've heard a lot -- and it does raise the question of whether or not you still think, as the committee goes on, whether you still think a public inquiry is necessary as well."

Prime Minister Harper: "Well, as you, I've asked David Johnston, a very eminent and respected Canadian, he's served various Canadian governments in senior capacities, I've asked him to give us his independent advice."

Peter Mansbridge: "On whether or not there should be an inquiry?”

Prime Minister Harper: "We asked him to frame the terms of reference for a public inquiry, but my guess is that when you ask someone like David Johnston to give you his opinion, he will give you his best opinion and so we’ll see what that is.  I, frankly, have never wanted to make this call myself.  I don’t think Canadians would necessarily see me or this government as terribly objective on this matter.  We have, for example, the Government of Canada has now been, for nine years, including the two years of our government, been seeking the extradition of Karlheinz Schreiber from Canada to face serious charges in Germany.  So I’m not sure that we’re very objective or would be seen as objective.  He’ll give us his views and that’s how we will proceed.  In the meantime, Peter, this government will try to focus its activities on things that are relevant to the 21st century.”

Peter Mansbridge: "All right.  Well, let me just ask you one more.  I hear you, but if he says to you, ‘You know what, you don’t need a public inquiry’?”

Prime Minister Harper: "I think whatever advice David Johnston gives us, it’s almost a certainty that that is the advice we will follow because, from the beginning, I have not wanted to be in a position of adjudicating what should, or shouldn’t, be done with former prime ministers.  I feel extremely awkward about that.  I feel particularly awkward in the case of Mr. Mulroney.  So that’s why we have asked someone whose views I think everyone can respect to give us his best judgement.  He’s pouring through not just what we’ve heard in front of the committee, but pouring through a lot of other evidence and documents to arrive at his conclusions.”

Peter Mansbridge: "Last quick point on this.  You’ve asked your Cabinet, your government, not to have any dealings with Mr. Mulroney while this goes on.  He’s testified now under oath.  Does that ban still exist?”

Prime Minister Harper: "Well, I think it would be wise on the part of our government not to have anything that could resemble a business dealing with Mr. Mulroney before we have taken whatever final decisions we have to take as a government.  I don’t think we would want to be accused of being in a situation where Mr. Mulroney was in some ways, directly or indirectly, ultimately influencing the final conclusions we make on how to deal with this matter.”

Set out below are excerpts relevant to the Mulroney-Schreiber situation from the interview CTV's Lloyd Robertson and Robert Fife conducted with Prime Minister Stephen Harper in December 2007:

Prime Minister Harper (responding to a question by Robert Fife): " . . . But, you know, that's ultimately why I chose David Johnston, who is a very eminent Canadian, to give us his best advice.  This is not a decision, I think, the government should or wants to make itself.  So he'll give us his best advice on how we should proceed with this information."

Robert Fife: “But Prime Minister, Karlheinz Schreiber talked a good game, but when push came to push, shove, actually he wasn’t able to provide any evidence of wrongdoing by Mr. Mulroney or anybody else.  Mr. Mulroney has apologized for accepting cash for what was a private business deal.  Can you justify spending millions of dollars on a public inquiry?”

Prime Minister Harper: "Well, Mr., as I say, Professor Johnston will give us his advice on that.  I don’t think that this government is in a position to amke that judgement itself.  In terms of Mr. Schreiber, in terms of his testimony, Bob, I’m not going to comment.  As you know, Karlheinz Schreiber has been the subject of an ongoing extradition effort by the Government of Canada for the past nine year and, for legal reasons, I would not want to comment on anything he says or doesn’t say.”

Robert Fife: “Well, let me ask you about your own MPs are saying -- that you jumped the gun in pushing for a, on a public inquiry.  Was it because you were angry at Mr. Mulroney because he apparently had let it slip that he had come to Harrington Lake with his wife to see you?

Prime Minister Harper: "Well, I just have to point out that everyone has been demanding a public inquiry.  Ah, I understand that a number of people now are rethinking that.  But in any case, that mandate rests with David Johnston, and the government will do whatever he recommends.  This government isn’t going to interfere with that process.  Obviously, people would suspect our partisan motives in making any particular decision so we’ve given a well-respected and independent individual the authority to advise us on that.”

Robert Fife: “Well, I mean, even Mr. Chretien said ‘Hey, if it was me, I would have said just turn it over to the police.  I’m not going to call a public inquiry.’”

Prime Minister Harper: "Well, as I’ve said, we’ve given that to Professor Johnston.  We’ll follow his recommendations.”

Robert Fife: “OK, well I’ll ask you, Mr. Mulroney and you were fairly good friends, apparently you talked to him quite a bit.  And now he’s persona non grata.  None of your ministers and MPs are supposed to talk to him.  When is that ever going to be lifted?”

Prime Minister Harper: "Well, I think at least until we get Professor Johnston’s recommendations, and then we’ll see what the most appropriate course of action is.  I think as long as the government still has decisions to make vis a vis the matter, I think it would just wise on our part not to have any kind of business dealings, or dealings, with Mr. Mulroney, that might lead some to question whether Mr. Mulroney himself was involved in making these judgements.”

Robert Fife: “To be clear then, we may not, in the end of the day, have a public inquiry.”

Prime Minister Harper: "That will be, Professor Johnston’s been asked to provide terms of reference but, you know, he will use his best judgement and I’m interested to see what he recommends.”

Lloyd Robertson: “So he would have the right, presumably then, to say ‘Look, we’ve been all through this, let’s call it off, let’s go another route.’”

Prime Minister Harper: "Well, he, you know as I say, he’s a, he’s an eminent, highly regarded, highly qualified Canadian, and I’m sure, in the end, he will give us what he believes is his best advice.  He’s been asked to do a particular job, but I’m sure he’ll use his discretion and we’ll see what he recommends.”