Prelude to a public inquiry - Liveblogging the Oliphant Commission (Day One)

Join ITQ for full liveblogging coverage as the lawyers for Team Mulroney, the Schreiber Schtrikeforce and the  . . .  Attorney General of Canada (who really does deserve a more distinctive moniker; feel free to send in your suggestions) make their clients’ respective cases on what the scope of Justice Oliphant’s investigation of the Mulroney-Schreiber affair should be. How many different ways can the word “appropriate” be interpreted? We’re about to find out.

(For a quick overview of what to expect from today’s hearing, check out the official ITQ cheat sheet.)

8:32:37 AM
Hey, guess who’s here early? Here, in this case, being the Victoria Room at Old City Hall, where just a few minutes from now, the cosmic ballet that is the Oliphant Commission will get underway. There aren’t many people here as yet – although unless I’m very much mistaken, Justice Oliphant himself was making his way down the entry hall at the same time as me – a few lawyers — or so I’m assuming, since they have the obligatory brief-stuffed briefcases and I just this second figured out why we call them “briefcases”. Sometimes I’m kind of slow. Anyway, there are no nameplates that I can see, but since they’re sitting at the front of the room, I’m going to assume that they’re with the band, as it were. Or bands, I guess.

Meanwhile, I’m experiencing a rather unsettling sense of deja vu from the last time I was in this building, when ITQ readers suffered along with me as I attempted to wring some sort of liveblogging fodder from the least thrilling First Ministers Meeting in Canadian history, where the only excitement came as reporters tried in vain to escape the carefully crafted media quarantine to find someone willing to talk about what was going on inside the conference room. Ah, memories.
CPAC is here as well, which is good news for those of you with access to a TV set (or a fast internet connection and an office environment that tolerates hours of procedural wrangling as background noise). As for the rest of you, you’ll have to depend on me.

8:47:43 AM
I’d just like to note with the highest possible approval that the Oliphant Commission has wisely eschewed the dreaded Alien Earpieces in favour of the traditional over-the-head-strap model. Sometimes, the old ways really *are* best. I can also report that the nameplates have arrived, although it doesn’t help me much since I’m sitting behind them, but I’m sure Justice Oliphant appreciates it. And speaking of old school, I can report that Fred Doucet’s lawyer, Richard Houston, is sporting a fabulous bowtie. I wonder if he can intervene during today’s proceedings even if he isn’t making an oral submission of his own.

8:57:27 AM
We’re about to start, and yet it’s still so quiet and — oddly calm. Not at all like a committee — even a *Senate* committee.

8:59:05 AM
All rise! It’s showtime!

9:00:34 AM
First up is Richard Wolson, lead counsel for the Commission, who gives a quick summary of why we’re here today – short version: definition of “appropriate” in the context of the terms of reference, particularly with regard to the conduct of former Prime Minister Brian Mulroney.

Ooh, the real hearings start on March 30th. Mark your calendars!

The order of appearance today is as follows: Attorney General; Schreiber Schtrikeforce; Team Mulroney – and as per Wolson, Doucet’s bowtied lawyer will not be speaking today. He’s just here for the show, I guess. I wonder how they figure out who goes first. Reverse alphabetical order? Flip a coin?

9:03:39 AM
Before the first submission – from the AG, by Paul Vickery – Justice Oliphant pipes up to inform all the parties that he hasn’t just read – and reread – their submissions, he’s also looked at the case law “in detail.” This seems to relieve Vickery, who says he won’t need the full hour to present his analysis, but Oliphant assures him that he wants to hear everything that he – and the other lawyers – have to say.

9:07:05 AM
Hey, guess who’s here? C’mon, this is an easy one: Herr Karlheinz Schreiber himself. He’s not sitting with the lawyers, but in the very back row, just across from ITQ, as fate would have it. He seems to be politely interested in what Vickery is saying – trust me, you’re not missing much so far; he’s just going over and over the point that a commission of inquiry is not a trial, and cannot find criminal or civil wrongdoing – although he is twiddling his thumbs.

Okay, back to Vickery, who is still explaining to the Commissioner that the position of the Attorney General – in other words, the government of Canada – on the difference between an inquiry and a criminal or civil trial, which, honestly, I think Oliphant gets by this point.

Vickery has now moved onto the tainted blood inquiry, and cites from — I think it’s a court decision, but we don’t have a copy of the big binder o’ references in the media corner, so it’s hard to keep track sometimes. A Commissioner has to be mindful not to be “too equivocal” in the language that he uses in his findings, lest it seem to be finding criminal or civil fault, but at the same time, shouldn’t perform semantic acrobatics to *avoid* coming to conclusions simply out of fear that it will be seen as overstepping his bounds. That’s a paraphrase, but I think it’s fairly accurate (and considerably more succinct than the original).

9:16:42 AM
Vickery reads the now familiar section of the Federal Court ruling that tossed out the Sinclair Stevens inquiry – the bit about how he couldn’t be expected to comply with conduct requirements established after the fact by the Commission – and notes that it will come down to how the investigation proceeds, and the relevence of any legislation, guidelines, rules or whatever will depend on whether the standards were in place at the time that the actions took place. Oliphant interrupts to point out that it’s only fair to counsel to know what the rules are from the beginning, at least as far as the context in which he will be analysing the evidence. Vickery, not surprisingly agrees.

9:19:53 AM
There is only one piece of legislation that *everyone* agrees should be taken into account by the Commission: the 1985 Conflict of Interest Code, which was actually tabled in the House by the former Prime Minister himself. I guess that it was kind of the Federal Accountability Act of its day, as far as the “we’re going to clean up the corruption and cronyism of those awful, awful Liberals.” Oh, Canadian politics. The more you change, etc. etc.

9:24:21 AM
The Code “had no statutory basis”, Vickery acknowledges, but even so, it was intended to apply to public office holders. Oliphant – and I have to confess I just accidentally typed Gomery there before I realized what I was doing – notes that this meant all members of the government, and Vickery agrees. I wish I had a better sense of how the judge’s mind works — it’s so hard to discern whether he’s already made up his mind, and is just humouring these guys, or genuinely bemused over how to handle the question of changing standards over time.

9:29:16 AM
Vickery is still whipping through his written submission – I appreciate a lawyer who doesn’t believe in belabouring the point – until he hits the Guidance for Ministers handbook from 1988 – Chapter Five, to be specific and for those of you playing along at home – which dealt with standard of conduct, and called on all public office holders to behave “so scrupulously” that their every action could withstand the most punishing public scrutiny – with standards stricter than those outside the realm of government.

Oliphant looks like he may be getting the teensiest bit impatient, and I’m not sure I blame him, since this really is word-for-word from the written submission. “In what year was this document produced?” He asks, demonstrating that he hasn’t, in fact, been listening all that closely — or is going somewhere with this — because as Vickery just noted, it was drafted in 1988. Is it true, Oliphant wonders, that each new Prime Minister adds new measures and requirements to the guidelines? Yes, it sort of is, concurs Vickery.

9:37:29 AM
Vickery seems to be winding to a close — he gives a brief rundown on the other potentially relevant laws, guidelines and precedent that he included in his written submission, and reads from another court ruling – R. v. Hinchey, which I’ve probably misspelled – in which the judge pointed out that there are myriad ways, including sections of the Criminal Code to maintain public confidence in the integrity of government, both actual and the appearance thereof. More jurisprudence follows – the upshot of which is that having laws on the books that make it a crime to attempt to influence public officials is an essential part of a free and just society.

9:46:52 AM
Oh, the Canada Revenue Agency’s Voluntary Disclosure Program! That was on the AG’s reading list too – it also made it into the Schreiber submission – much to Guy Pratte’s disgruntlement, but according to Vickery, it, too, may “inform” the commission.

9:48:36 AM
And – that’s that. He’s done, and the judge has no questions, so it’s on to the next presenter: Richard Auger, counsel to Karlheinz Schreiber, who begins by thanking Vickery – and the Attorney General – for his “excellent” submission. Mr. Schreiber “joins the Attorney General” in proposing that the Commission may be “informed” by all of the previously listed material, from the Parliament of Canada Act to the Income Tax Act. He doesn’t want to repeat his written submission – thanks for that, counsellor – but he does want to highlight a few issues, including taxation standards and the rules of the Quebec Bar. Oh boy.

9:52:24 AM
The thing about the taxes, according to Auger, is that the Voluntary Disclosure policy, and the relevent documents in which the former PM may have set out details of his business relationship with Schreiber, which could be helpful in determining the facts. There’s also the matter of the GST – not the introduction thereof by the aforementioned former PM, but as far as assessing the standards and facts surrounding that component of taxation. Oliphant has a question: Does he mean the potential obligation on Mulroney to charge GST on his services? Yes. Yes, he does. It goes to the “appropriate reporting” of transactions. As long as he doesn’t embark on a criminal investigation, all of this material should be available to “inform” the commissioner, Auger says, which doesn’t mean he has to ultimately come to a conclusion on, for instance, the GST.

9:58:36 AM
Auger breezes through the potential for relevence to be found in the rules of the Quebec bar — it sets out appropriate conduct for lawyers, basically, of which Mulroney was one at the time — before moving on to the bigger issue, as he sees it, which is the purpose of the public inquiry itself.

Oliphant reminds him that unlike a Superior Court Justice, his jurisdiction is strictly delimited by the instrument that created the Commission – an Order in Council – and even if all the parties agreed on something, its mandate can’t be expanded by consent. Any “innate curiosity” on his part, the judge notes, is irrelevent. Auger assures him that he agrees completely – one always agrees with the judge, at least on the record, I suppose.

10:03:09 AM
In what is very nearly an ironic twist, Auger points to the conclusions of Dr. Johnston – the original Special Advisor who recommended a limited inquiry into the Schreiberffair – who found that it was unlikely that any criminal wrongdoing had taken place. Given that, why not allow Oliphant to investigate as fully as possible, since there is little risk that he will run afoul of the ban on finding criminal liability. I bet Pratte isn’t going to like that one bit.

10:06:42 AM
It’s just not in the public interest to look only at the 1985 Code, Auger stresses. Although Mulroney (or at least his counsel) has argued that rules that have come into effect since the events under review took place should not be taken into account, those changes reflected longheld beliefs about appropriate conduct, and go to the “timeless principle” of accountable government. Look at the federal court ruling last fall that rejected Alfonso Gagliano’s attempt to quash the findings of the Gomery Commission, which found that despite Gagliano’s contention that some of the rules hadn’t been in place at the time, these were principles at the core of responsible government even if they hadn’t at that point been published. They existed “even during his reign as minister.” Huh, that sounds like a very interesting, and snarkily-worded ruling. I’ll definitely have to check out the whole thing – I vaguely remember the decision, but it was either right before or in the midst of the election madness and probably didn’t get nearly the attention that it deserved.

10:13:09 AM
That’s it for Auger, and since there are no questions, that means a fifteen minute break for us. See you in a few!

10:21:13 AM
We’re not back yet, but I just wanted to report that the word on the street – and by street, I of course mean the hall outside the commission meeting room – is that the hearing isn’t likely to go all day, which seems like a fair bet given how quickly it’s going so far. We’ve already heard from two of the three scheduled speakers, and it’s not even 10:30 – at this rate, we’ll be done by noon. Unless the judge suddenly gets chattily inquisitive when Pratte takes the microphone on behalf of Team Mulroney.

10:28:19 AM
Yikes. I hadn’t realized how very, very blizzardy it is outside, despite the fact that I’m actually sitting under a giant pointy skylight-panelled glass pyramid … roof … thing. (Suddenly, I fear my dreams of a future career in architectural journalism may be misplaced.)

10:33:02 AM
Guy Pratte is not well, it seems – he promises he’ll “try to cough” through his submission in the allotted time, and the judge tells him to take all the time he needs – even if he needs a break midway through. “If I’m on the floor, that will be a clue that I need a break,” jokes the what-a-trooper counsel to the former PM.

And with that, he’s off, and begins by pointing out that the “narrow purpose” of this inquiry makes it unique — while most commissions are set up to examine systemic failure or allegations of wrongdoing, this focuses on the actions of just one man.

10:38:19 AM
I’m not sure if it’s him or me, but I’m having some trouble following Pratte’s train of thought — he seems to be leaping about erratically; wondering why the government didn’t begin a criminal investigation if they believed the allegations coming from Schreiber here, pointing to the wider question of shifting standards of conduct in government there. It all goes to the narrowness of the mandate, apparently – and the “vagaries” of the verb “inform” and the “slipshod” way it has been used; any way he could interpret that term, Pratte suggests, would lead to an “improper and illegal inquiry.”

What was the first inquiry to have its findings challenged in federal court – or its very right to exist? Is that a relatively recent (since the 80s, that is) development? I mean, obviously I’m not suggesting that the findings of any commission should be finite and unappealable, but you have to think that at this point, we’re risking commission chill. Particularly after the barrage of counter-Gomery complaints, both during and after the commission.

10:43:15 AM
Yes, yes, I’m still listening to Pratte – criminal standards, and how Oliphant can’t apply them, nor should he be “informed” by them. “One of the points I want to make very forcefully,” he tells the judge, is that not even the lawyers for the AG and Schreiber have offered suggestions as to what other standards could apply.

10:46:22 AM
The last point that Pratte would like to make before his “detailed submission” is the question of reputation, and public perception, which should be taken into account when applying standards of conduct after the fact, which is what Auger proposes that the Commissioner do, based on the ephemeral concept of “accountable government.”

Recognizing the impact of the blood inquiry report on the reputations of individuals, the judge who reviewed it noted that commissioners ought to be careful about implying criminal liability, but Pratte – who I just remembered is representing at least one of the people still battling the Gomery report at federal court – goes further: unlike civil and criminal trials, inquiries are broadcast live, on television (and in liveblog format, even). There is wide public knowledge of the allegations and eventual findings, not to mention the fact-finding function. There is a special danger of that when there is just one person – any one person, but especially a former prime minister. “It’s a perfect storm,” he stresses. The reputation of a former minister of the crown “has a purchase on the public mind and emotion” that is exclusive to their ilk.

Even Mulroney’s harshest critics would not challenge — wait, why is he talking about free trade and apartheid? I mean, I know why – they’re on the list of his client’s most significant achievements – but I’m not sure why it follows that a public inquiry into a totally unrelated allegation of misconduct would be unjust.

10:58:25 AM
Next on Pratte’s list of bullet points: how the tainted blood inquiry isn’t like this one, although the judge points out that actually, the more recent inquiry into the conduct of pathologist Charles Smith may be the closest example. Pratte still wants to go over his jurisprudence – the Starr Report, which I’m ashamed to say I don’t even recall the issue, and others, I’m sure. The government cannot, in the guise of a public inquiry, conduct a criminal investigation in all but name is the gist, which is what the Supreme Court noted in its decision on Starr.

On to Nelles, where the court found that “naming names” that imply someone has committed a crime is “verboten”. I’m not sure if that’s realistic, given the nature of this inquiry — I mean, two of the parties involved are named in the name of the commission itself, but that doesn’t stop Pratte from accusing Schreiber *and* the government of trying to investigate criminal allegations without due process.

11:07:47 AM
Pratte notes that what the commissioner *can* do – and they all agree on this – is look at the standards of conduct that were in place at the time; in this case, the 1985 Conflict of Interest Code. As for the rest of the material listed – the Parliament of Canada Act, the Financial Administration Act – violation of any of these would be an offence, statutory or criminal, which means that Oliphant cannot apply them directly. Does that qualify as a catch 22? It seems like it *should*. Oh, and as for the Quebec Bar – if it decides to investigate his conduct in 1993, it can do so – but nobody else should on its behalf.

The terms of reference also provide “some guidance” with the use of the term “constraint” in the preamble, and the sections dealing with “ethical guidelines” but make no mention of statutes.

11:14:40 AM
Finally, the Oxford English Dictionary gets a shoutout as Pratte moves onto that most unfortunate – in his view, at least – word “inform”, which really seems to set his teeth on edge, since it could allow the commissioner “to do indirectly what he can’t do directly” by giving him a loosey-goosey out that deprives the Mulroney of 1985 after the fact of knowing a judge might come to the conclusion that his actions were inappropriate. Sophistry – sophistry! Fie and fiddlesticks.

The commissioner, who hasn’t smiled once this morning, is also not allowed to come up with his own interpretation of appropriate standards, I have to wonder at the wisdom of a strategy that seems to start from the assumption that he’s already looking for loopholes to allow him to exceed his jurisdiction.

11:20:13 AM
So, what *can* the judge do? Well, he can apply the 1985 Code to the actions of the former Prime Minister in 1988, and deal with those “ethical guidelines.”

11:22:38 AM
Questions! For the first time this morning, Oliphant has questions for counsel following his presentation, starting with reputations, and whether a report can damage that of an individual. What if it is the conduct itself that damages the reputation, he asks, and Pratte agrees that this can happen.

“Making that kind of finding depends on the evidence that is let,” notes Oliphant, who concurs with the notion that Mulroney should know what standard will be applied. What if, for instance, he used Mulroney’s own letter to his cabinet in 1985, which set out his expectations as far as conduct for ministers, or other contemporaneous statements by Pratte’s client during his prime ministerial days. Apparently, as per Pratte, at least, it goes to the “articulation” of those principles. The then-PM said that they should be held to “very high standards”.

11:28:52 AM
“Yes, these expressions of principle are important,” Pratte – still trying to argue that his client’s words at the time shouldn’t necessarily be taken to indicate his understanding of the standard of conduct at the time. But the best way to determine the “articulation” is to go by — you guessed it, the 1985 Code. Schreiber is either napping or frowning – I can’t tell.

11:30:42 AM
That’s it for the presentations, which means another fifteen minute break for us. Wow, they’re far more liberal than committee when it comes to recess.

11:43:44 AM
Okay, I was doing my best not to complain – a New Years resolution! – but I’m so cold, y’all. I think they rely on the sun to heat this room, and it is — not currently present, shall we say. I’ve already been forced into my fleecy, and if it gets any worse, I may have to put on my hat as well.

Also, it is *Robert* Houston wearing the snappy bowtie and representing Fred Doucet, not whatever incorrect name I unwittingly foisted upon him.

11:50:51 AM
And we’re back, likely for the last time – we’re about to hear replies from the various parties, but first, the judge has an announcement to make related to the mandate of the committee.

Originally, they’d hoped to start work on February 9th, which was pushed to March 30th, which in turn led him to seek an extension of the mandate – originally set for June 12th, 2009. Guess what? He got it – which means the final report will be due on December 31, 2009. He still hopes that the bulk of the hearings will have taken place by June 12th, but the mandate has, in fact, been extended.

11:53:37 AM
Now, back to the matter at hand. The judge has some issues he wants to raise with counsel – all of them – and he’ll leave it up to them to decide whether they want to reply immediately, later today, tomorrow or in writing.

The first is related to the 1985 Code – good old Codey; I’m getting rather fond of it – specifically Section 5, which states that it does not absolve any public office holder from complying with legislation and statutes of “more general application” like, among others, the Financial Administration Act, the Parliament of Canada Act, and other then-active laws.

Huh. So, in other words, the Code that even Pratte acknowledged is relevent to the commission’s mandate includes an explicit reference to the material cited by Schreiber and mentioned as possibly relevent by the Attorney General. Unless I’m missing something, which is entirely possible.

He’d also like their assistance on a possible contradiction and/or redundancy in the mandate that I didn’t quite grasp, but will hopefully be clarified.

The counsel – all of them – hold a quick huddle to see who is prepared to respond right now.

12:00:16 PM
Okay, so speaking on behalf of the lawyers, Vickery asked Oliphant if the commission could “stand down” for five minutes, but apparently, it’s unwise to leave the judge sitting up there with nothing to do but think, because in the few minutes that they were in that huddle, he came up with another issue. Would any of the counsellors object if he applied the standard of whether an average but informed Canadian would find the conduct in question appropriate? I so wish I could have seen Pratte’s face right about then, but alas.

Anyway, to give the lawyers a chance to mull over all three issues, we’ve adjourned for ten minutes. Whee!

12:08:02 PM
Alright, so one of the lawyers – I think commission counsel, actually – tells Oliphant that counsel have agreed to submit “brief” replies today, but then take more time to reflect and ponder and muse on the issues, with written responses to be filed by January 26. The judge worries for a bit about making sure there is adequate time for the various parties to reply, but it all works out in the end.

12:10:51 PM
With that bit of procedural administrivia settled, Vickery takes the lectern for his five alloted minutes of reply, which he uses to stress the need to fully study the laws that must be met to meet the *first* bar of conduct — observing the law. As such, it just makes sense to look at the various laws that were in place, which will – oh, he’s going to say it – “inform” the commissioner in his work. In “Guidance for Ministers” (1988, I believe), the then-PM called on his cabinet to meet the highest standards of conduct and didn’t we hear all this already? Or is this yet more deja vu?

Also, I still haven’t seen the judge smile, but maybe he’s done so when I’ve been focused on my screen.

As for those pop questions to counsel, he sees that as another indication that the Code of Conduct was not supposed to be a standalone arbiter for public office holders; to “understand the universe of restrictions and constraints”, you have to look at all the laws, not just that one code.

On the second question – the one I didn’t quite get which dealt with the terms of reference; his submission is that questions eleven and tweve “operate at a broader level” than thirteen, as far as the appropriateness of Mulroney’s actions and disclosure, and the ethical standards involved, respectively.

12:20:21 PM
As for the final question, Vickery says that it will require “significant review” to determine whether the reasonable person standard is consistent with the mandate of the commission; it may beg the question of what it means to be “fully informed”, which goes to the heart of the debate between himself and Pratte on — okay, yeah, I see what he means. The problem, Oliphant notes, is that these are relative terms. Yeah, those are always a pain.

Anyway, that’s all from Vickery, which puts Auger on the stand, and he wants to take a teeny tiny issue with Pratte’s apparent dismissal of then-PM Mulroney’s letter to his ministers. The point, he says, is that the standards of accountable and good government – the principles – apply to any era. Either I’m delirious with hunger, or that makes sense, although I suspect Pratt will have an issue of his own to take with Auger in reply.

The other point he wants to make is that the terms of reference did not limit the commissioner to the 1985 code, coupled with the clause that forbids him from finding criminal or civil responsibility, suggest that the drafters of those terms may have anticipated that he would go outside the bounds of the code.

12:29:12 PM
With Auger having exhausted his time, Pratte steps up with his reply, which begins by once again waving aside the Guidance for Ministers handbook, which itself refers to the 1985 Conflict of Interest Code. As for the point about the explicit mention of other laws and statutes in the 1985 code, that was to make it clear that just because a minister was in compliance with the law did not necessarily mean he was meeting the standards of the code. So – wait, that seems sort of circular, doesn’t it? And did Pratte just use the word loosey goosey? I fear we may have some sort of psychic feedback loop.

12:36:33 PM
Back to the Nelles case – still with Pratte, who will probably be the last person to speak, unless one of the other lawyers wants to rebut his rebuttal – in which a judge found that even non-binding conclusions could be “seriously prejudicial” to the subject thereof, and someone later found not to be responsible would have no recourse. It’s all well and good to include the boilerplate about not making findings on criminal liability, but if references to criminal law is sprinkled throughout, the effect on the reputation of the individual may be the same.

12:39:44 PM
That’s all for his reply to the other submissions; now, he’s ready to comment on the issues raised by the judge. As he already stated in his submission, “it simply doesn’t logically follow” that a code that creates ethical standards “beyond all those that out there” but that contains a reference to other laws and statutes should give the commission leeway to look at that extraneous material. Really? It actually seems fairly logical to me, but I’m no lawyer. Plus, I didn’t have breakfast, and my cognitive skills tend to drop alarmingly in proportion with my blood sugar.

Anyway, Pratte believes that this would put in place a standard that would be “extraordinarily difficult” to understand. Plus, neither Vickery nor Auger is willing to provide any definition of “appropriate” – they’re just inviting the commissioner to set his own, which would be the Stevens case all over again.

12:46:46 PM
Oliphant keeps forgetting to reactivate his mic – I think the commission counsel table needs some sort of handsign – and he wonders about the question of an objective analysis of what the public expected from its elected officials at the time: Pratte suggests that the best way to discern that would be to look at what the majority government of 1985 did in response to concerns over corruption.

And that’s all for Pratte, which means that’s all for this meeting — the judge thanks all and sundry for all those helpful submissions, and wishes us luck getting back to our respective homes and office. “It’s rather snarly out there,” he notes. I’d say it’s been rather snarly in here, too – it’s just been couched in the most careful language.

Anyway, I’m going try to burrow my way back to the Hill, but I’m sure that I’ll be back later with more organized thoughts.

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