Monday, May 21, 2012

The players!

Good Day Readers:

Saturday's initial preliminary meeting of the Inquiry Committee was indeed interesting. Dates have not yet been "firmed up" as Richard Nixon used to day, but the actual inquiry is expected to get underway sometime in June and conclude approximately at the end of July during which 10 hearings (dates to be announced) are expected to take place of which 6 are likely to be devoted to the presentation of evidence. Before then, CyberSmokeBlog will profile the 3-Judge 2-Lawyer Inquiry Panel beginning with it's Chair.
 The Honourable Catherine Fraser was appointed Chief Justice of Alberta and The Northwest Territories in 1992 thereafter being named Chief Justice of the Nunavut Court of Appeal (1999).

Born in News Brunswick, she went on to graduate from the University of Alberta with her Bachelor of Arts and Bachelor of Laws degrees. She also holds a Master of Laws from the London School of Economics. It should be noted she was the first woman appointed Chief Justice of Alberta receiving an Honourary Doctor of Laws degree from the University of Calgary.

On Saturday, during our presentation, she gently and politely corrected us for referring to Independent Counsel Mr. Guy Pratte as the Prosecutor and Sheila and Molly Reynolds as Counsel for the Defendant. It should have been Counsel for Associate Chief Justice Lori Douglas. Not being a Philadelphia lawyer we were most appreciative - a classic, textbook rookie mistake.

Independent Counsel
Guy J. Pratte is a member of both the Ontario and Quebec Bars. Fluently bilingual he divides his time among the Borden Ladner Gervais' Montreal, Ottawa and Toronto offices.

In 2007 he became a Fellow of the American College of Trial Lawyers a status conferred on less than 1% of all practicing attorneys of any state or province.

He graduated from the University of Western Ontario with his Bachelor of Arts (Honours - Gold Medal) in History and Philosophy and later his Master of Arts in Philosophy, as well as, a Bachelor of Laws from the University of Toronto.

Many of you will remember him from the Oliphant Commission which had a distinct Manitoba flavour. Chief Commissioner was former Manitoba Queen's Bench Chief Justice Jeffrey Oliphant while noted Winnipeg Criminal Lawyer Richard Wolson served as Lead Counsel to the Commission. .
Here Mr. Pratte is shown arriving for the start of the Oliphant Public Inquiry with client Brian Mulroney (May 2009).

It seems The Right Honourable former Prime Minister had a "slight" problem - explaining away about $225 thousand worth of cash stuffed into envelopes he had received from German businessman-lobbyist Karlheinz Schreiber. While the Inquiry made for some riveting prime time television, no one was sent off to jail save for Mr. Schreiber. His deportation was delayed until after his testimony at which time he was shipped off to his native Germany. Recently, he was released from jail

Reporter Stevie Cameron and those associated with the CBC's outstanding investigative journalism show, The Fifth Estate, that had been tracking a much larger potential scandal (Airbus) involving alleged kickbacks in the millions of dollars involving the purchase of Air Canada jets were left scratching their heads when it was ruled not part of the Inquiry's mandate.

In the end Canadian taxpayers were left with a bill for $8 million - for what?

Fast forward to today. CyberSmokeBlog was contacted very recently by someone suggesting we take a look at Page 39 Paragraph [103] of the Canadian Judicial Council's May 15, 2012 report entitled, Rulings of the Inquiry Committee concerning the Honourable Lori Douglas with respect to certain Preliminary issues (its 41 pages can be accessed on the CJC website - So here it is:

[103] The four questions asked by the Committee with respect to the role of independent counsel have generated much broader submissions, analysis and exposition of the nature of the entire inquiry process. However, the answers to these questions may be summarized as follows:

(1) Independent counsel cannot delete any complaints, allegations or matters a review panel has referred on for inquiry.

(2) Independent counsel may recommend not proceeding with any of these but the decision whether evidence must be called in relation to them rests entirely with the inquiry committee.

(3) The inquiry committee may reject any recommendation that independent counsel may make in accordance with its mandate, including its view of the public interest and the law, including the principle of fairness.

(4) Ordinarily independent counsel may continue to act in spite of the inquiry committee rejecting any recommendation by independent counsel but independent counsel should be careful not to make such recommendations in a matter that could compromise the perception of his or her impartiality in such circumstances. (emphasis ours)

Sub paragraph (4) is particularly troubling. Speaking hypothetically, of course, does this mean Independent Counsel Pratte could decide not to hold an inquiry in spite of the inquiry committees's rejection of his recommendation?

Since we were given leave to re-apply for standing at the inquiry because its Terms of Reference (also referred to as the Notice of Allegations) have not yet been announced, it was not necessary to present our more detailed counter arguments against Mr. Pratte and Team Block-Reynolds request that our original application be dismissed. But we draw your attention to the following from Independent Counsel's letter of May 9, 2012 to Counsel for the Committee, Mr. George Macintosh, Q.C. at Page 5 Paragraph 3:

"Given the unique role played by Independent Counsel in investigations pursuant to The Judges Act, specifically his/her obligation to perform his/her duties impartially and in accordance with the public interest, there must be compelling reasons before granting intervener status to persons who do not have a direct and substantial interest. In making a decision about whether to grant intervener status, committee should weigh the expected benefit of the intervener's participation against the added time and costs associated with the participation of additional players."

Our counter argument::

Response: What mechanism(s) are currently in place to ensure this cannot or will not happen?

Our apology in advance to Chief Justice Fraser for using the "P-word" but there was no way of avoiding it. Has prosecutorial misconduct on the part of Manitoba Crowns not already occurred in at least 3 high profile cases? In the annals of American jurisprudence and elsewhere, are there not examples of innocent people who have unjustly been incarcerated?

We rest our case ... for now.

Clare L. Pieuk  


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