RULESWATCH

March 31, 2009

More on the Oliphant Inquiry — Clarification v. Reconsideration

Filed under: 1 — ruleswatch @ 11:08 am

On February 25th the commission released a decision (“Ruling on Standards of Conduct”) directing itself to consider specified statutes and the Criminal Code as setting standards for aspects of its inquiry into the dealings between the former Prime Minister and Mr. Schreiber.

Last Tuesday (March 24,2009) the commission heard counsel on Mr. Mulroney’s efficiently resulting motion for clarification of the Commissioner’s ruling (opponents have described it as an effort for “reconsideration”). Although the commission ruled orally on the motion two days later, it is about to be released when the transcript of the hearing is posted on the Inquiry’s website.

The areas in which the Commssion had ruled outside statutes are to be considered touch on the following points of its mandate:

11. Were these business and financial dealings [Mulroney-Schreiber] appropriate considering the position of Mr. Mulroney as a current or former prime minister and Member of Parliament?

12. Was there appropriate disclosure and reporting of the dealings and payments?

13. Were there ethical rules or guidelines which related to these business and financial dealings? Were they followed?”

The Commissioner’s questioned ruling expressed the available use of the statutes as follows, “I will be informed by these statutes … not for the purpose of assessing criminal or civil liability, but for the purpose of understanding what is considered to be inappropriate conduct.”

The stakes in the decision and the reconsideration are high. Statute law, the Commission found it could consider consists of the Parliament of Canada Act, the Financial Administration Act, the Income Tax and the Criminal Code, as they were at the time of the events giving rise to the Inquiry.

The use of the statutes is said to be contentious because, as an Inquiry, the Commission is strictly precluded from touching upon matters of criminal or civil liability. On the other hand, expressed and explicit standards of conduct at the time are otherwise lacking.

The former Prime Minister’s challenge to the ruling seeks clarification, it says, because among other things, it did not specify the parts of the statutes to be referred to, and drift that the motion says it detects, in the scope of how and to what extent they can be accessed.

One expects the decision to be closed reviewed for the purposes of judicial review.

(With many thanks to Barry McLoughlin, of McLoughlin Media, communications consultants to the Commission for prompt and helpful information on this.)

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