Monday, November 25, 2013

Good on you Corporal Horton! Can you hear his footsteps yet Stephen Harper?

RCMP investigator moved to make ITO public
Glen McGregor
Friday, November 22, 2013
Nigel Wright, former Chief of Staff for Prime Minister Stephen Harper, is the subject of an ITO filed by the RCMP which alleges that crimes have been committed by Wright and Senator Mike Duffy. (Adrian Wyld/The Canadian Press)

The sensational court document laying out fraud and bribery allegations involving the Prime Minister’s Office became public this week only after an RCMP officer agreed to its release.

The Mountie investigating the Senate expense scandal, Corporal Greg Horton, went before a judge on Wednesday to consent to the public release of the Information to Obtain a production order (IT0) he had sworn five days earlier.

The ITO was provided to the media later that day. Had Horton not consented, it could have been weeks or months before journalists or the public saw the document, if ever.

The move suggests the RCMP wanted public exposure of the 81-page document that describes in detail the reasons Horton alleges that crimes have been committed by Senator Mike Duffy and Prime Minister Stephen Harper’s former Chief of Staff, Nigel Wright.

The RCMP claims it was only following court procedures but Horton’s consent to release the ITO could raise concerns about the fairness of making unproven allegations public in such a politically-charged case.

Usually, when an investigator files an ITO to support a request for a production order or search warrant, the document does not become public until the investigator files another sworn statement, called a “return,” saying the order has been executed and the records sought had been obtained.

Court administrative staff are not allowed to even confirm an ITO exists until the investigator files the return. This prevents the targets of investigations from finding out what police are seeking before they seize records or execute a search.

But in this case the ITO became public before Horton filed any return, after he went before Justice Hugh Fraser and swore an affidavit consenting to the release of the document. That allowed clerks at the Ottawa courthouse to provide the ITO to anyone who requests it.

The court said it had not received a return on the order.

It is unclear why the RCMP agreed to open up their investigation to public view.

RCMP spokesperson, Corporal Lucy Shorey said that Horton was following an unspecified new process required by the court.

“We were told there is a new court process that the court implemented,” Shorey said. “It’s the court that’s asking us to do this, I’m told.”

But Ottawa court officials said there is no new system in place and that Horton’s consent simply allowed them to break with protocol and release the ITO before the return was filed.

“There is no new process,” said Jocelyn Gouthro, the Senior Clerk at the Ottawa courthouse. “It’s nothing new. This has been the policy forever.”

Gouthro said that, in high-profile cases, police sometimes want ITOs made public before the returns are filed, but court staff cannot do that, according to their procedure manual.

To release the document, they require “judicial direction” of the kind Horton obtained on Wednesday.

Pressed to explain why Horton wanted the document public, or what new process he was following, Shorey referred inquiries back to court administrators.

The court order Horton obtained with the November 15 ITO compels the Royal Bank of Canada to turn over additional Duffy banking records but also requires the Senate to turn over more than four months of emails sent and received by Duffy and Conservative senators David Tkachuk, Marjory LeBreton and Carolyn Stewart Olsen through their Senate of Canada accounts.

The order bypasses the four senators’ offices and instead directs Senate administrative staff to extract the emails from the Senate’s email server. In the ITO, Horton says Clerk of the Senate Gary O’Brien had made sure the emails were preserved, based on Horton’s previous request.

In theory, the speaker of the Senate, Noël Kinsella, could claim parliamentary privilege and refuse to release the records to police.

Any of the four senators could argue that the release of their emails is a breach of their parliamentary privilege, said former House of Commons Law Clerk Rob Walsh.

“One possibility is that the senators themselves, one or all of them, threatened to rise on point of privilege,” Walsh said.

“They could rise in the chamber and seek an order of the Senate refusing that the order be carried out.”

But that will be harder for them to do, now that the RCMP has put on the public record the texts of dozens of other emails provided voluntarily by Wright that track efforts by PMO staff and senators to massage a Senate committee report on Duffy’s expenses.

As the target of the investigation, Duffy in particularly might resist handing over his email, though it is unclear if he could claim privilege while under suspension and unable to enter the Senate chamber.

If Kinsella upheld that privilege claim and refused to release some or all of the emails, there isn’t much the police could do.

“The Senate cannot be found in contempt of the court order,” Walsh said.

But Horton seems to have secured Kinsella’s agreement, according to the ITO. He says he spoke to Michel Patrice, Deputy Law Clerk at the Senate.

“He has in turn conferred with the Speaker of the Senate on this matter, and we are in agreement with the terms and conditions I am proposing,” Horton wrote.

The Senate would not say whether the emails had been turned over to Horton yet.

“The Senate does not comment on matters under investigation,” said spokesperson Annie Joannette.

“The Senate is fully co-operating with the RCMP on its investigations as stated publicly by the Speaker.”

The RCMP provoked outrage in the midst of the 2006 election when it sent a letter to a New Democrat MP saying that it was conducting an investigation into alleged leaks on income trust tax policy.

An RCMP press release on the investigation named then-Finance Minister Ralph Goodale — a move that some believed may have contributed to the Liberals’ defeat. No one was ever charged over the allegations.

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