Good on you Associate Chief Justice Oliphant!

Mulroney Will Face 'Closest Possible Scrutiny,' Inquiry Chair Says

GREG MCARTHUR
Globe and Mail
February 25, 2009

Former Prime Minister Brian Mulroney lost a bid to narrow the scope of an upcoming public inquiry into his conduct yesterday after the inquiry chair ruled that his decision to accept cash payments shortly after leaving office should “bear the closest possible scrutiny.”

The chair, Associate Chief Justice Jeffrey Oliphant of Manitoba's Court of Queen's Bench, rejected arguments from Mr. Mulroney's legal team that he is forbidden from using the Criminal Code of Canada to determine whether Mr. Mulroney acted inappropriately when he took hundreds of thousands of dollars in cash from lobbyist Karlheinz Schreiber.

The ruling is the first public indication from Judge Oliphant about how far he is willing to probe when the inquiry begins in earnest on March 30.

The inquiry was called in late 2007 by Prime Minister Stephen Harper after revelations that not only had Mr. Mulroney accepted at least $225,000 in cash from Mr. Schreiber in 1993 and 1994, but that he waited six years to declare the income.

Mr. Schreiber was paid more than $20-million in secret commissions by German manufacturers for his efforts in negotiating federal government contracts during Mr. Mulroney's time in office. Mr. Mulroney and Mr. Schreiber have both testified that those commissions had nothing to do with the cash, but the men have offered different explanations about the purpose of the payments.

At a hearing about a month ago, Judge Oliphant asked all inquiry participants to make arguments about what standard he should use when assessing whether Mr. Mulroney's behaviour was “appropriate” – a question that the federal government has given the judge the task of answering.

Mr. Mulroney's lead lawyer, Guy Pratte, argued that the Public Inquiries Act, as well as numerous rulings, meant that Judge Oliphant could not consider laws such as the Income Tax Act, or Canada's anti-corruption legislation, because inquiries are barred from making findings of criminal or civil wrongdoing.

Judge Oliphant ruled yesterday that there is a distinction between making a finding of criminal wrongdoing and informing himself of what society considers to be appropriate, as reflected in criminal laws.

“I intend to determine, on an objective basis, whether Mr. Mulroney ... conformed with the highest standards of conduct,” the judge wrote.

“I believe that this standard is one that reflects the importance to Canadian democracy of the office of the prime minister, as well as the public trust reposed in the integrity, objectivity and impartiality of public office holders.”

The judge also pointed out that in 1988 Mr. Mulroney distributed a document to his cabinet titled Guidance For Ministers that warned them they had an obligation to go further than “simply to observe the law.”

Yesterday, Judge Oliphant ruled: “If the Prime Minister intended to hold ministers personally accountable to that level, then it follows that he himself would be accountable on the same basis.”

The former prime minister has not appeared at any of the inquiry's preliminary hearings.

Mr. Schreiber, meanwhile, dropped an outstanding lawsuit against Mr. Mulroney this week.

More than a year ago, the 74-year-old German-born businessman sued the former prime minister, alleging that Mr. Mulroney did no work in exchange for the cash.

Mr. Schreiber was due to be examined in Quebec this week as part of the civil proceedings.

In a letter to Mr. Mulroney's lawyers, a lawyer for Mr. Schreiber explained that rather than provide information in advance of the inquiry and help Mr. Mulroney prepare for what Mr. Schreiber might say come March, he was choosing to end the legal fight now.