” … Parliamentarians should have the grace to let justice calmly and effectively follow its course.”

Letter from Jean-C. Hébert, counsel to Julie Couillard, to the Standing Committee on Public Safety and National Security (emphasis added):

Dear Mr. Préfontaine:

I regret to inform you that Ms. Julie Couillard chooses to decline the invitation to appear before the Standing Committee on Public Safety and National Security on June 18, 2008, for one hour and fifteen minutes. My client chooses to decline this invitation for a number of reasons.

*Background

On June 2, 2008, the Committee adopted Serge Ménard’s motion on division. This motion authorizes Committee members to consider and report to the House of Commons on “the security issues raised by the relationship that the former Minister of Foreign Affairs had with a person with ties to organized crime.”

The purpose of Ms. Couillard’s testimony is very broad. At first glance, it is unrealistic to imagine that all the Committee members could effectively and fairly interrogate my client in seventy-five minutes.

Let us recall that, in his letter of resignation of May 26, 2008, Mr. Bernier openly stated that he had “left classified government documents at a private residence.” This allegation is tremendously important.

*Equality before the law

Pursuant to paragraph 4(4) b) of the Security of Information Act, R.S., 1985, Ch. O-5, “every person is guilty of an offence under this Act who allows any other person to have possession of any official document issued for his use alone.”

Under this same paragraph, any person is guilty of an offence who “without lawful authority or excuse, has in his possession any official document […] or on obtaining possession of any official document by finding or otherwise, neglects or fails to restore it to the person or authority by whom or for whose use it was issued, or to a police constable.”

Pursuant to section 27, if indicted, the person committing one of the above offences is liable to imprisonment for a tem of not more than 14 years. Under section 24 of the Act, prosecution is subject to the consent of the Attorney General of Canada.

Mr. Bernier’s refusal to testify is of significant strategic importance. The Committee cannot confirm the terms or accuracy of his defence of having “left” the documents behind. If he did not voluntarily allow another person to have possession of official document, how can former Minister Bernier be accused of violating the Act?

My client however is at risk of being indicted by the Attorney General for having had an official document in her possession, without lawful authority or excuse. The main witness for the prosecution would have to be Maxime Bernier.

If the Committee wishes my client to publicly disclose all the circumstances surrounding the secret document having been “left” at her residence by an inattentive minister, her fundamental right to make a full and complete defence could be seriously affected in a subsequent trial.

The fundamental principle of justice guaranteed by Article 7 of the Canadian Charter of Rights and Freedoms, the right of the accused to “prepare” and if necessary to present a full and complete defence,” manifests itself in several more specific rights and principles, such as the right to full and timely disclosure, the right to know the case to be met before opening one’s defence, (R. v. Rose, [1998] 3 S. C. R. 262, par.98). These rules of fairness that apply before a court of law should also inspire the work of the parliamentary Committee.

There comes a time when defending these principles should take precedence over political opportunism. These principles should not simply be held in reverence but should serve as active forces inspiring the course of justice.

*Possible introduction of irrelevancies

Mr. Juneau-Katsuya’s testimony, resting as it basically did on a press clipping file, was purely the product of a creative imagination, but it did nevertheless contain one important thing: a sexist reference to the attributes of the “mole” Couillard. If my client were forced to give evidence, the indifference of the Committee’s members to this offensive comment suggests that other irrelevancies would be introduced.

Lopsided treatment by the Committee of the two main witnesses, Mr. Bernier and Ms. Couillard, would seriously distort the requirement for equality of all before the law. Oddly, by forcing Ms. Couillard to testify before the Committee, the opposition MPs would be strengthening Mr. Bernier’s strategic position … and that of the government!

*Politics and justice

Without being certain of it, my client nevertheless has reasonable grounds to believe that the RCMP is currently undertaking an investigation. In remarks made to the House of Commons on November 19, 2007, MP Serge Ménard accurately described the dynamic of a police investigation:

When the police investigate a crime, they likely begin with hypotheses and lists of suspects. Sometimes the investigation reveals that some of the suspects did not commit the crime being investigated. Throughout the investigation, they carefully seek new evidence, collect and preserve that evidence, and proceed only once they are sure that the evidence will prove beyond a shadow of a doubt that the person believed to be guilty of a crime, is. (emphasis added)

Mr Bernier is not required to give evidence before the Committee. In the framework of a police investigation, he has the constitutional right to remain silent. Moreover, he is not obliged to collaborate with the investigators from the Department of Foreign Affairs who are carrying out an internal investigation. His silence could complicate a police investigation and hamper the preservation of evidence.

Requiring Ms. Couillard to disclose the case for her defence before Mr. Bernier does the same would violate the principle of equality of arms. This inequality in the treatment of the two witnesses runs the risk above all of having repercussions on the preservation and analysis of evidence by the RCMP.

*Conclusion

The classical view of the separation of powers, founded on parliamentary sovereignty, is that the judge is simply the representative of Parliament. But in the modern view, anchored in constitutionalism, the judge becomes the overseer of the legislative power. In Canada, the concept of separation of powers reflects the mutual respect that the three powers must have for one another in order to distinguish and strengthen their roles.

When it comes to arbitrating conflicts in the fundamental rights and the conflicting or contradictory interests of Ms. Couillard and Mr. Bernier, parliamentarians should have the grace to let justice calmly and effectively follow its course.

I would appreciate your transmitting this letter to the members of the Committee.

Yours sincerely,

Jean-C. Hébert, Barrister and Solicitor