Supreme Court of Canada Refuses To Hear
Ethics Law Appeal Case -- Ruling Means Cabinet Ministers Can Control
Investigations of Themselves, Their Staff, Family and Friends
Democracy Watch Still Seeks MPs and
Senators to Re-file Complaint to
Commissioner Rules On Issue, and to Change Ethics Law to Ensure Public
Rulings on Complaints Filed by Anyone
Friday, June 12, 2009
OTTAWA - Today, with the Oliphant Commission Part II Policy
Review hearings beginning next week, Democracy Watch announced that the
Supreme Court of Canada has refused its application for leave to appeal
the Federal Court of Appeal's January 2009 refusal to review federal
Conflict of Interest and Ethics Commissioner Mary Dawson’s January 2008
decision that Prime Minister Harper and his Cabinet were not in a
conflict of interest when they made decisions about the investigation
of the Mulroney-Schreiber affair, and further that the Ethics
Commissioner is not required to investigate and rule on complaints
filed by the public.
Democracy Watch called again on MPs and Senators from all political parties to re-file the request for an investigation and ruling that it filed in November 2007 with the Ethics Commissioner.
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 as inquiry commissioner Justice
Oliphant 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.
The Ethics Commissioner will appear on a panel the morning of
Wednesday, June 17 at the Oliphant Commission to answer questions about
how she interprets and enforces the Conflict
of Interest Act and also the Conflict
of Interest Code for Members of the House of Commons.
Democracy Watch is a party to the Part II Policy Review of the
Oliphant Commission, and will be making its submission and questioning
other participants in the Part II hearings which will be held next
Monday, June 15, June 16 and 17, and Monday, June 22.
Democracy Watch's position in the court case was that when
allegations about themselves or their associates, they are not allowed
decide the scope of the investigation nor to choose their own
and judge, and neither should the Prime Minister, Cabinet ministers or
any other politician, political staffperson or government official.
Democracy Watch's position was also that the complaint system
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
"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
of its employees in order to ensure its complaint about another
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.
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.
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 her 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
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
affidavit, and; the government was involved in legal proceedings to
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:
Democracy Watch is represented on a pro-bono basis in
by the Ottawa law firm Hameed Farrokhzad Elgazzar Brousseau.
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FOR MORE INFORMATION, CONTACT:
Democracy Watch's Government
Democracy Watch's Ethics Complaints and Court
To see op- ed about
need for new method for calling federal government inquiries, click here
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 an eminent, highly regarded, highly qualified Canadian, and I’m
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
and we’ll see what he recommends.”