Group Calls for Rulings from Ethics Commissioner on
Actions by Prime Minister and Other Cabinet Ministers Concerning Mulroney-Schreiber
Monday, November 26, 2007
OTTAWA - Today, at a news conference in Ottawa (To see a video of part of the news conference, click here (and then click on VIDEO link on CTV.ca page link takes you to)), Democracy Watch released the request it has filed for rulings from the federal Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act (To see letter to the Commissioner set out below, click here) on the actions taken by Prime Minister Stephen Harper and Justice Minister and Attorney General Rob Nicholson on the Mulroney-Schreiber affair, and on future potential actions and decisions by them and other Cabinet ministers, Cabinet staff, and senior officials.
On Friday, November 9, 2007, Mr. Harper stated that "it's impossible, frankly, for the government to make an impartial judgement on how to proceed" in responding to the situation involving former Prime Minister Brian Mulroney and Karlheinz Schreiber and, indirectly, Prime Minister Harper, showing that he recognized that members of his government are in a conflict of interest with regard to the situation.
However, Mr. Harper then contradicted himself and selected David Johnston to review the situation and give advice to him and his Cabinet ministers, and then they will decide how to proceed with setting terms of reference for a public inquiry, choosing the inquiry commissioner(s), and other steps. And Mr. Nicholson continues to be active on the issue of the extradition of Mr. Schreiber to Germany.
“When Canadians face allegations about themselves or their associates, they don’t get to decide the limits of the investigation, control witnesses or choose their own judge, and neither should the Prime Minister, Cabinet ministers or any other politician,” said Duff Conacher, Coordinator of Democracy Watch. “Democracy Watch calls on the federal Ethics Commissioner to ensure that Conservative Prime Minister Harper and his Cabinet ministers have complied with the conflict of interest law so far, and are not involved in making any more decisions that affect themselves or their Conservative colleague Brian Mulroney.”
It should be noted that Ethics Commissioner Mary Dawson was appointed Associate Deputy Minister of Justice by then-Prime Minister Mulroney in 1988, and was selected by Prime Minister Harper and his Cabinet to be the Ethics Commissioner in spring 2007.
Democracy Watch also called on all MPs on the House of Commons Access, Privacy and Ethics Committee to ensure that whatever hearings they hold involving Mr. Schreiber or Mr. Mulroney are conducted fairly and impartially. The best way to do is for all of the MPs on the Committee to agree in advance upon a list of questions, and the order in which the questions will be asked, with the advice of the Parliamentary Counsel, and then to have the Chair of the Committee ask all of the questions. If they do not agree on questions, the MPs should, at the very least, consult with the Parliamentary Counsel to ensure their questions are similar to the evidence-seeking questions usually asked during court hearings.
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FOR MORE INFORMATION, CONTACT:
Democracy Watch's Government Ethics
Text of Letter to federal Conflict of Interest and Ethics Commissioner Mary Dawson
Conflict of Interest and Ethics Commissioner Mary Dawson
November 26, 2007
RE: Request for an investigation of, and ruling on, decisions and participation in decisions by Prime Minister Stephen Harper and Minister of Justice and Attorney General Robert Nicholson, and for a recusal ruling for all Cabinet ministers, all concerning the Mulroney-Schreiber situation
Dear Ms. Dawson:
Democracy Watch is filing this letter to request, under the provisions of the federal Conflict of Interest Act, rulings on, and concerning one matter investigation of and ruling on, the actions of Prime Minister Stephen Harper and Minister of Justice and Attorney General Robert Nicholson concerning the Mulroney-Schreiber affair.
With this letter, Democracy Watch is also requesting a recusal ruling for all federal Cabinet ministers, Cabinet staff, and “at pleasure” senior government officials with regard to discussions, decisions, votes or other actions concerning the Mulroney-Schreiber affair.
In addition, Democracy Watch is also requesting that you issue an Interpretation Bulletin that will govern how the Prime Minister, Cabinet ministers, Cabinet staff, and “at pleasure” senior government officials must act in future situations in which their actions are in question, no government entity independent of Cabinet has jurisdiction over the issues raised by their actions, and therefore a commission of inquiry is requested or considered.
Prime Minister Harper has been named in an affidavit filed in court by Karlheinz Schreiber, as has Mr. Mulroney.
Mr. Schreiber sent a package containing the same information as contained in the court affidavit to both Mr. Harper and Minister of Justice and Attorney General Robert Nicholson several months ago. Mr. Nicholson was appointed by, and served as a Parliamentary Secretary under, Mr. Mulroney when he was Prime Minister.
The federal government paid Mr. Mulroney $2.1 million in a settlement of a libel lawsuit filed by Mr. Mulroney concerning his relationship with Mr. Schreiber. Mr. Schreiber’s package of information, and court affidavit, contain new information about that relationship that was not known at the time of the lawsuit settlement. Two pieces of new information that Mr. Mulroney has admitted to are that he received $300,000 from Mr. Schreiber and met with him a few times.
According to media reports, the Ministry of Justice undertook a review of lawsuit settlement with Mr. Mulroney when the new information became available.
On Friday, November 9, 2007, Mr. Harper stated that "it's impossible, frankly, for the government to make an impartial judgement on how to proceed" in responding to the situation involving former Mr. Mulroney and Mr. Schreiber and, indirectly, Prime Minister Harper, showing that he recognized that members of his government are in a conflict of interest with regard to the situation.
On the same day, Mr. Harper stated that he had decided he would soon appoint an investigator to review the new information (whom he claimed would be independent even though the investigator would be selected by, and would work for, Mr. Harper).
On Monday, November 11, 2007, Mr. Mulroney issued a statement that, among other things, said: “in order to finally put this matter to rest and expose all the facts and the role played by all thge people involved, from public servants to eleected officials, from lobbyists to police authorities, as well as journalists, the only solution is for the government to launch a full-fledged public commission of inquiry.”
On Tuesday, November 13, 2007, Mr. Harper stated that he had made a different decision and would not appoint an investigator, but instead would appoint an advisor (whom he claimed would be independent even though the advisor would be selected by Mr. Harper and serve at his pleasure and only make non-binding recommendations (in other words, could be dismissed at any time for any reason)) who would advise him on the terms of reference for a public commission of inquiry, and also advise him on other possible responses to the new information.
On Wednesday, November 13, 2007, Mr. Harper appointed David Johnston as the advisor, and set out terms of reference that set limitations on Mr. Johnston’s review, and make it clear that Mr. Johnston is serving at Mr. Harper’s pleasure, and will only be making non-binding recommendations to Mr. Harper and his Cabinet concerning terms of reference for a public inquiry, possible prosecutions, and “any additional course of action” to respond to the Mulroney-Schreiber situation (See news release and terms of reference at: http://pm.gc.ca/eng/media.asp?category=1&id=1905).
On Thursday, November 15, 2007, Mr. Schreiber lost his appeal of the order of extradition to Germany to the Ontario Court of Appeal when the court ruled that the order was legal. Mr. Schreiber filed an application in the Supreme Court of Canada appeal the ruling.
As Minister of Justice and Attorney General of Canada, Mr. Nicholson
has extensive powers to expedite or delay the extradition of Mr. Schreiber.
With regard to conflicts of interest and preferential treatment, the
The Act defines key terms in the above cited sections as follows:
“2.(1) "private interest" does not include an interest in a decision
With regard to recusal of a public office holder from a decision-making
process, the Act states that:
The Act also states that:
“Condition of appointment or employment
In R. v. Hinchey,  3 S.C.R. 1128 [To see a summary
of the ruling, click here],
Supreme Court of Canada Justice L'Heureux-Dube wrote the majority judgment
And at paragraph 18:
The minority judgment in R v. Hinchey, delivered by Justice Peter
Cory, did not dissent on any of the above points. In fact, Justice Cory
agreed with the need for an "appearance of integrity" standard for public
officials, stating at paragraph 94:
The July 9, 2004 ruling by Honourable Justice Frederick E. Gibson in
Watch v. The Attorney General of Canada (Office of the Ethics Counsellor)
[2004 FC 969] and  4 F.C.R. 83 [To see a summary of the case,
here] echoed the Supreme Court of Canada’s ruling in R v. Hinchey.
Application of the Law to the Decisions and Actions of Mr. Harper
and Mr. Nicholson
To date, neither Mr. Harper nor Mr. Nicholson have recused themselves from taking part in or making past decisions concerning the situation, and neither have recused themselves from taking part in or making future decisions.
Mr. Harper and Mr. Nicholson have made decisions, and taken part in decisions, concerning the Mulroney-Schreiber situation that are official exercises of their powers and functions. Both also will, unless they are required by you as Commissioner to recuse themselves, take part in and make decisions in the future concerning the situation (Mr. Harper setting the terms of reference for the public inquiry and choosing the inquiry commissioner or commissioners, and Mr. Nicholson with regard to the extradition of Mr. Schreiber, the review of the settlement of Mr. Mulroney’s libel lawsuit, and possible decisions concerning prosecutions).
Mr. Harper and Mr. Nicholson may have made decisions that, essentially, gave preferential treatment to Mr. Mulroney, and can certainly make decisions in the future that give preferential treatment to Mr. Mulroney.
Mr. Harper and Mr. Nicholson may have used their positions as two of the most powerful public office holders to influence the decisions of other people in a way that improperly furthered the interests of Mr. Mulroney.
Mr. Harper has a private, personal interest in the situation (an interest that is not shared with anyone else except Mr. Nicholson), namely protecting his personal reputation and position as Prime Minister, given that Mr. Mulroney has advised him, and that he is named in Mr. Schreiber’s court affidavit, and that there are questions about what he knew about the situation, and the new information sent by Mr. Schreiber to him several months ago, and when he knew about it, and what he did when he became informed about it.
Mr. Nicholson has a private, personal interest in the situation (an interest that is not shared with anyone else except Mr. Harper), namely protecting his personal reputation and position as a Cabinet minister, given that Mr. Harper appointed him to Cabinet and could dismiss him from Cabinet at any time for any reason, and that there are questions about his role in the review of the settlement of Mr. Mulroney’s libel lawsuit, and his role in possible prosecution decisions, and about what he knew about the new information sent by Mr. Schreiber to him several months ago, and when he knew about it, and what he did when he became informed about it.
None of the provisions of the Conflict of Interest Act (the Act) limit the application of the Act to matters in which a public office holder has a financial interest. The only exemptions that could possibly apply to the handling of the Mulroney-Schreiber situation are if the situation was a matter of general application or affected a broad class of the public, which the situation clearly does not (as it involves the actions of only a few people at most).
The purpose of the Act, and all provisions in it, and Supreme
Court of Canada rulings, make it clear that the application of the Act
must always be directed to ensuring that public office holders do not take
part in or make a decision if there is any possibility that their private
interest could be affected by their decision. The private interests
of both Mr. Harper and Mr. Nicholson are directly affected by decisions
they have taken part in or made concerning the Mulroney-Schreiber situations,
and will be directly affected by decisions they may take part in or make
in the future.
Request for rulings, and further investigation in one case
Democracy Watch believes that the information set out above and below
give you much more than adequate evidence upon which to form the reasonable
belief that a contravention has occurred.
You also have under the Act the power to make orders as
Based on the facts of the Mulroney-Schreiber situation and what is known about Mr. Harper’s and Mr. Nicholson’s private interests in the situation, and actions to date with regard to the situation, and based on the provisions of the Conflict of Interest Act (the Act) and Supreme Court of Canada and Federal Court of Canada rulings, Democracy Watch’s position is that the following serious questions arise that warrant rulings and, in one case, a further investigation:
Recusal of All Cabinet Ministers, Cabinet Staff, and “At-Pleasure”
Senior Government Officials, from Decision-making About Mulroney-Schreiber
Given that Mr. Harper selected all Cabinet ministers, some Cabinet staff, and some “at pleasure” senior government officials, and that Mr. Harper can dismiss all of these people without cause at any time, Democracy Watch believes that they are also all in a conflict of interest by extension of the conflict of interest Mr. Harper is in with regard to the Mulroney-Schreiber situation.
Democracy Watch therefore also requests that you review the connections between Mr. Mulroney and Mr. Schreiber and all federal Cabinet ministers, their staff, and “at pleasure” senior government officials who are covered by the Conflict of Interest Act (the Act), and whether they have taken part in or made decisions with regard to the Mulroney-Schreiber situation, to determine whether they have violated the Act.
Democracy Watch also requests that you issue a recusal rulings that apply to all federal Cabinet ministers, their staff, and “at pleasure” senior government officials who are covered by the Act stating that they are prohibited from taking part in or making future decisions concerning the Mulroney-Schreiber situation.
In particular, Senator Marjorie LeBreton has acknowledged publicly that she is a close friend of Mr. Mulroney, and Minister of Foreign Affairs Peter Mackay worked for Mr. Schreiber’s company in the past and his father was a Cabinet minister in Mr. Mulroney’s government and a friend of Mr. Schreiber.
As well, given loopholes in the federal political donations law (the
Act) that existed in the past and allowed for secret donations, it
is also possible that Mr. Mackay or other Cabinet ministers received donations
from Mr. Mulroney and/or Mr. Schreiber for their election campaigns, and
in particular it is possible that Mr. Mackay received donations from Mr.
Mulroney and/or Mr Schreiber for his party leadership campaign for the
Progressive Conservative Party (or to pay off the debt he had after the
campaign), and so to be complete an investigation of whether such donations
were received must be included in your examination of possible conflicts
of interest in this situation.
Interpretation Bulletin Concerning Conflicts of Interest and Inquiries
Such an Interpretation Bulletin would be consistent with the rules that prohibit, because of their inherent conflict of interest, the Prime Minister, Cabinet ministers, Cabinet staff and senior government officials from participating (except to provide evidence) in or making decisions about the review processes that occur when complaints are filed about their actions in all of the following situations:
As a result, Democracy Watch’s position is that you must seriously consider
your own capacity to be impartial concerning decisions with regard to the
In any case, time is clearly of the essence in this situation, especially with regard to pending decisions by Prime Minister Harper and Justice Minister and Attorney General Nicholson, and so Democracy Watch urges you to make your rulings concerning recusals especially very quickly.
Overall, Democracy Watch’s position is that the federal ethics rules not only are very necessary, but also that the law requires that the rules be fairly, impartially, competently and strictly enforced. Democracy Watch bases its position on the rulings of the Supreme Court of Canada in R. v. Hinchey,  3 S.C.R. 1128 [To see a summary of the ruling, click here], and the Federal Court in Democracy Watch v. Canada (Office of the Ethics Counsellor) (F.C.),  4 F.C.R. 83 [To see a summary of the case, click here].
Democracy Watch looks forward to your prompt response to the above information and requests.