March 29, 2009

Of Suicide Missions and the Oliphant Inquiry

Filed under: 1 — ruleswatch @ 8:17 pm
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Manitoba Justice Jeffrey Oliphant, sitting as the Commission of Inquiry into aspects of Karlheinz Schreiber’s dealings with former Prime Minister Mulroney is scheduled to begin to take evidence Monday, March 30 (for two days, to start). In the meantime there’s been some interesting tactical sideplay.More visibly a dispute of over a request for clarification or reconsideration of scope of the Inquiry’s use use of criminal and regulatory statutes as standards in assessing the conduct of the actors is before the Commissioner.
But behind this  question as one of the legally more spectacular aspects of the Inquiry’s procedural process is what seems at first a rather strange request on behalf of the Commissioner.

The request and to whom it was made adds a bit of interesting tactical sideplay before the House of Commons’ Standing Committee on Ethics.

Early this month, the Commission approached the Commons Committee. The Committee, you will recall, had conducted its own hearings, under oath and exercising summonsing power on a broad range of the Schreiber affair through often raucous, CPAC-televised hearings last year.

Now, Commission counsel had formally notified the Commons Committee that they were seeking Parliamentary permission to make evidence taken before the Committee available for use before the Commission in its own hearings.

The request immediately raised the issue of parliamentary privilege over the evidence along with the practical ramifications of assurances of parliamentary protection the Committee had given to each witness who had appeared before it.

As anyone who has taken a look at the law on the issue would have told you, at the time of the Commission ‘s request, it had all the markings of a suicide mission.

Just over three years before the Gomery commission had denied former federal Public Works Minister Alfonso Gagliano the opportunity to cross-examine the intrepid Chuck Guite on evidence the latter had given to Public Accounts Committee. Mr. Gagliano’s counsel said they had identified contradiction in the witness’ evidence before the two bodies.

The Commissioner’s ruling was subsequently upheld. In 

Gagliano v. Canada (Attorney General) (F.C.) [2005] 3 F.C. 555) the Court gave an apparently thorough review of the law of parliamentary privilege, starting with the 1682 Bill of Rights and moved forward from there. Included in its analysis was a further set of advice on why it would be wise for Parliamentarians not to seek to begin giving waivers.

So why then would the Commission’s lawyers, no slouches, have made the effort?
The answer appears in the transcript of the Commons’ Committee’s own proceedings for its March 11, 2009 meeting as law clerk and Parliamentary counsel for the House helped committee members work through the question.

He was surprisingly blunt according to the Committee’s transcript. “I might just add, ” Mr. Walsh told the committee, “that I have reason to believe–and I guess it is speculative–that what the commission counsel is trying to do here is get this issue off the table, in effect, so that it doesn’t come up and take up the time of the commission with lawyers arguing about wanting to use parliamentary testimony for purposes of cross-examination. I suspect the commission counsel, in preparing for the start of hearings…wants this issue closed off and dealt with. In anticipation of that, they’ve started this process…”

Who’d a’ thought it?

The Commission of Inquiry into Certain Allegations Respecting Business and Financial Dealings Between Karlheinz Schreiber and the Right Honourable Brian Mulroney. Its proceedings will be televised on CPAC starting 9:30 EDT March 30, 2009.





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