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Order. Good morning, colleagues.
First of all, I would like to ask the indulgence of everyone in this room to maintain as much silence as possible so that everyone can hear. It's important there be no distractions.
Secondly, I would implore people to please turn off your cellphones now.
Today we start our formal work on the study of the Mulroney Airbus settlement pursuant to the resolution adopted by the committee on November 22, which reads—and this is important for the members to be reminded of—as follows:
That in order to examine whether there were violations of ethical and code of conduct standards by any office holder, the Standing Committee on Access to Information, Privacy and Ethics review matters related to the Mulroney Airbus settlement, including any and all new evidence, testimony and information not available at the time of settlement and including allegations relating to the Right Hon. Brian Mulroney made by Karlheinz Schreiber and, in particular, the handling of allegations by the present and past government including the circulation of relevant correspondence in the Privy Council Office and Prime Ministers Office; That Karlheinz Schreiber be called to be a witness before the committee without delay; and That the committee report to the House its findings, conclusions and recommendations thereon.
The members will also know that a supplementary motion was passed to call Mr. Schreiber to be here on or before November 29, and also that Mr. Mulroney be called on December 4 and/or December 6 and/or December 11.
Let me propose that I first report to the committee on what has been done since the adoption of that order; second, that I deal with motions from members for which I have received proper notice; and third, that I have Mr. Rob Walsh, Law Clerk and Parliamentary Counsel for the House of Commons, advise the committee on certain legal and procedural matters to guide the members in the conduct of our examination of witnesses; and finally, that if the committee concurs, that we move in camera for the last part of the meeting—if there is any time left—to consider matters related to the decorum and productivity of the committee.
In discharging the specific instructions of the committee, I used the resources of the Law Clerk and Parliamentary Counsel, Mr. Walsh; the clerk and his staff; and Mr. Derek Lee, MP, a lawyer who has authored a book, The Power of Parliamentary Houses to Send for Persons, Papers & Records. Over the last five days, I have sought their advice as chair, but I take full responsibility for the actions taken on behalf of the committee.
On Thursday, November 22, the day of our last meeting, I had a brief meeting with the Clerk of the House of Commons to advise her of the decision of the committee and to ensure that the resources of the House were available to assist as necessary. I then spoke personally to the justice minister to advise him of our decision and that a formal letter was forthcoming.
Just after question period, I received a letter by fax from Mr. Edward L. Greenspan, counsel for Mr. Karlheinz Schreiber, in which he asked to be consulted about the dates and to be advised about the authority under which we claim to be able to call Mr. Schreiber to attend.
By 6 p.m. of the day we last met, a letter was sent to Mr. Schreiber to formally advise him that the committee had called him to appear before us on the Mulroney Airbus settlement on November 27 or November 29, and that he was to reply promptly.
At the same time, I sent a letter to the justice minister formally advising him of our decision and seeking his cooperation to make Mr. Schreiber appear before the committee.
On Friday, November 23, I faxed to Mr. Greenspan a letter, together with a copy of the letter sent to his client, Mr. Schreiber, and offered to speak with him by phone or to meet with him in his Toronto offices on Friday, Saturday, or Sunday, at his convenience. That afternoon, Mr. Schreiber, as you know, issued a public statement in which he said he was willing to appear before the ethics committee with certain conditions, some of which this committee discussed, including being able to wear a suit before us; access to his papers; and sufficient time to prepare for his appearance. He also asked for bail, which is being sought by his own legal counsel as part of their application for leave to appeal to the Supreme Court on the extradition order on Mr. Schreiber.
I also received a phone call from Mr. Greenspan's office and confirmed an appointment in his office at 1 p.m. on Saturday, November 24.
Finally, at 5 p.m. this past Friday, my office received a letter of reply from the , in which he writes—I'd like to quote from the letter so that all will know—in the middle of that letter the following:
In your letter, you have sought my cooperation in ensuring that Mr. Schreiber appears before the Committee. I have assured the Court of Appeal of Ontario that Mr. Schreiber will not be surrendered before December 1, 2007, and I continue to stand by that commitment.
It is important to understand that should the Committee seek to enforce the attendance of an individual before it, this will be a matter for the House of Commons and Speaker to consider.
On Saturday, November 24, I met with Mr. Greenspan and his associate, Ms. Vanessa Christie, for two hours to answer their questions about our proceedings and authority under which the committee can compel Mr. Schreiber to appear before us. I left Mr. Greenspan with a copy of our Standing Orders and a copy of Mr. Lee's book for his reference.
Following that meeting, I had numerous telephone conversations with our clerk and with Mr. Lee to consult with them on certain issues I needed advice on to discuss the timing of our next step.
On Sunday, November 25, due to my concern about the shortness of time and the fact that it became apparent it was unlikely Mr. Schreiber would be able to appear today, I contacted the clerk and instructed him to proceed with the drafting of a summons to require Mr. Schreiber to appear on Thursday, November 29.
Following numerous consultations throughout the day, the decision was taken to proceed with that summons and serve it on Mr. Schreiber on Monday morning. I returned to Ottawa that night to ensure I was in my office early Monday morning to sign the necessary documents.
On Monday, yesterday, the summons was signed in the early morning and was delivered to Mr. Schreiber, with copies to all required persons. I respectfully declined all media interviews on the status of our efforts to have Mr. Schreiber appear, because the committee members themselves had not been fully informed. The law clerk and other legal advisers had been reviewing the process we had followed and the necessary steps yet to be taken.
After question period yesterday, I met with Mr. Walsh and his legal staff, the clerk and assistant, as well as with Mr. Lee to resolve contradictory opinions with regard to jurisdictional authority. There were conflicting views between the Ontario Attorney General's office and the federal justice department as to who could vary the Schreiber court order. At one point, it appeared we would have to go before an Ontario court judge to vary a court order so that Mr. Schreiber could be brought to Ottawa and appear.
Some questions were still not clear, so we had a conference call with Ms. Vanessa Christie from Mr. Greenspan's office. Ms. Christie confirmed they had received no answer on their bail request for Mr. Schreiber, nor did they receive an answer from the federal justice department for a stay on extradition pending their application for leave to appeal to the Supreme Court. If there is no stay in the extradition, Mr. Schreiber will not be able to appear before us on Thursday and he could be extradited as early as Saturday, December 1.
Ms. Christie also explained, however, that Mr. Schreiber was initially held under a committal order, which is in provincial jurisdiction. He was in the custody of the province.
However, in 2004—previous government—the committal order moved to the surrender stage, which put Mr. Schreiber effectively in the custody of the federal government. So as of today, Mr. Schreiber is in the custody of the federal government. This ministerial order was signed by , and that responsibility carries on to successor justice ministers until Mr. Schreiber is either extradited or cleared.
We had access to these historic documents to confirm that Mr. Schreiber was, in fact, in the custody of the federal government, and that the current has the full authority to vary his order so that Mr. Schreiber's extradition would be stayed and he would be able to appear before us on Thursday and for as many additional days as the committee felt was necessary.
As a consequence, it was recommended to me, and I agreed, to send the following letter—this was yesterday—to the Minister of Justice:
Further to my letter dated November 22nd and your response of November 23rd, the Committee has issued a Summons to Karlheinz Schreiber ordering him to appear before the committee before 11 am on Thursday, November 29, 2007. I have attached a copy of that summons to this letter.
Pursuant to the Order of Surrender under the Extradition Act, we understand that it is within your authority to delay completion of that Order until other matters are resolved.
The Committee would hope that you would take whatever steps are necessary to ensure that Mr. Schreiber appears before the Committee in compliance with both the Summons and the motion adopted by the Committee....In particular we seek your assurance that Mr. Schreiber will not be extradited to Germany until such time as the Committee no longer requires him.
I thought it was over, but this morning at 10:10 I received a reply from Mr. Nicholson. It's important, and I want to read it into the record also:
Further to my letter of November 23, 2007, and my assurance to the Ontario Court of Appeal, I confirm that Mr. Schreiber will not be surrendered to Germany prior to December 1, 2007,
—i.e., Saturday—
and consequently, his extradition will not prevent his appearance before the Standing Committee on Access to Information Privacy and Ethics on November 29th.
You have asserted that I have the authority pursuant to the Extradition Act to delay the execution of the order surrendering Mr. Schreiber to Germany until the resolution of “other matters”. The Extradition Act provides me with no such authority.
Let me repeat: according to the justice minister, the Extradition Act provides him with no such authority to vary that order.
While surrender may be delayed pending an appeal, judicial review, completion of outstanding criminal proceedings or the service of a Canadian criminal sentence, there is no broad general discretion to delay. I would therefore encourage the Committee to proceed expeditiously.
Finally, with respect to Mr. Schreiber's attendance before the committee in compliance with the summons issued on November 26, 2007, as I emphasized in my letter of November 23, 2007, the enforcement of the attendance of a witness by the Committee is a matter for the House and the Speaker to consider.
The justice minister says it is not our decision. It is a matter for the House and the Speaker to consider.
In our system of government, having regard to the separation of powers between the executive, legislative, and judicial branches of government, it would not be appropriate for the Minister of Justice and Attorney General of Canada to seek to enforce the summons of a Parliamentary Committee.
Section 108(1) of the Standing Orders of the House of Commons empowers all standing committees to call for persons, papers, or records. There is no disagreement by any person with whom I have consulted or who has advised me that we have the full authority of Parliament to summons Mr. Schreiber to appear.
If Mr. Schreiber is able to appear but fails to appear without justification, he could be cited by the House for contempt of Parliament. Furthermore, if the Minister of Justice ignores this order of Parliament and does not vary his surrender order to permit Mr. Schreiber to appear, he may also be cited by the House to be in contempt of Parliament.
In my opinion, I fully expect Mr. Schreiber to appear before us on Thursday, November 29. The ball is now in the minister's court.
I will now ask Mr. Rob Walsh to approach the witness table. He will assist me in responding to any of your questions or comments.
Julia is going to make a speakers list, so please advise me if you have any comments or questions.
Mr. Dhaliwal is first, then Mr. Hiebert, and Mr. Martin.
Yes, Mr. Martin, on a point of order.
If I may, Mr. Walsh, the Extradition Act is probably silent on what the justice minister's responsibilities, authority, and rights and privileges are. However, the real question is this: what is his responsibility as justice minister vis-à-vis an order of Parliament, which we have issued?
Basically we have the authority to ask. He's saying he hasn't got the authority to vary and yet, in fact, the surrender order under which Mr. Schrieber is currently being held is signed by the Minister of Justice and can be only changed by the Minister of Justice. It's prima facie. There's no question he can, in my opinion, vary his order. It has nothing to do with the Extradition Act.
The committee is going to have to instruct me or, in a report to the House, instruct the parliamentary counsel, the law clerk, to give us the layout, but given the velocity of events here....
Now on the Speaker's warrant, could we leave that until we have Mr. Martin--
An hon. member: I'd like his answer on the question.
The Chair: On the conflict, yes, okay.
Mr. Walsh, please.
:
Mr. Chairman, thank you.
I think I need to respond to the member's question relative to the apparent conflict made evident, it would seem, in the letter of the minister of today's date—I'm losing track of dates myself—and your letter to the minister yesterday.
Your letter yesterday did say, “we understand that it is within your authority to delay completion of that Order until other matters are resolved”—it's a reference to the Extradition Act—to which the minister is saying, correctly enough, the Extradition Act itself expressly does not give that authority.
There's a bit of dancing on words here. Your letter might well have said that is “within your power” to cause a delay. In my view, it is.
If we have to go to the Extradition Act, section 42 says, “The Minister may amend a surrender order at any time before its execution.” It's not a long sentence, it's not a complicated section. That's the beginning and the end of it.
Now, one could argue—lawyers can argue about anything, as you know—what that means, but it seems to me at first blush it would suggest there is a capacity on the part of the minister to amend his surrender order.
Mr. Schreiber himself is not, we must remember, in any way guilty, in my view, of any contempt here. He has said he's willing to be here. If there's any contempt going on, it's on the part of the persons who are frustrating his ability to get here.
He's incarcerated in a provincial institution pursuant to an order of surrender. It was an order of committal by the court. We're past that now. We're now where that's finished, and we're looking at an order of surrender.
The order of surrender by Minister Cotler at that time, dated October 31, 2004, does not have a date in it by which time the extradition is to take place.
I would add to that—not to get too elaborate—a recent decision of the Court of Appeal for Ontario in respect of Mr. Schreiber's judicial review application, where it turned down the appeal of the judicial review application. It said, in paragraph 3, that “The ultimate”—and in my view, “ultimate” is an operative word there—“decision to surrender for extradition following judicial committal for extradition is essentially a political decision.”
And then later it says, “A subsequent decision by the Minister to refuse to reconsider a surrender order is subject to at least the same level of deference”, that being deference by the courts. They're recognizing this is a political matter; it's not for the courts to interfere with the minister's discretion, which they're saying is of a political nature. By using that expression, the court doesn't mean to deride the nature of the decision; they're just saying it's not a judicial decision, it's not a legal decision, it's a political decision—and it makes reference to a subsequent decision.
In my view, given section 42, where he can amend his order, and given the Court of Appeal of Ontario's recognizing that he can make a subsequent decision, while it may be true that the Extradition Act does not give him the authority to delay—in my view, it's not necessary to find that authority in the act, apart from the ability to amend, which infers the same authority—it ought to be straightforward that the minister can determine when it is he shall extradite and delay, if I may use the word again, the execution of that extradition, pending these proceedings.
Now, that said, the man's in jail. You can't keep someone in jail indefinitely. Obviously, there might be serious arguments if two years from now the man's still in jail and the minister's still pondering whether to extradite. Clearly you can't keep someone in jail indefinitely. That's obviously a concern of the minister's, that he has somebody in jail. So he can't delay this indefinitely. But it's not the case, in my view, in the short time I've had to consider the minister's letter, that it is not within his power to effect a delay in the execution of the surrender order pending completion of these proceedings.
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Madame Lavallée, order, please.
I have five more people who have indicated that they would like speak. We're almost halfway through our meeting, and we still have, I believe, four motions to deal with.
I'm in the hands of the committee. I can continue to receive questions on this from these five people, or we can move on to the motions. I think that everybody, other than Mr. Wallace, has had one question.
An hon. member: I have a question for you.
The Chair: Yes, that's where we are right now.
I'm going to suggest that I deal with the five people who are on the list right now, and then we will move to the motions. I'm pretty sure that the questions we're asking now and debating now actually will be relevant in the discussion of the motions.
I don't want to frustrate anybody, but I think we should move on, because you could talk about this for another hour. I want the committee to have the opportunity to make specific inquiries related to what I did. We are moving a little forward on what we should do, so as we slowly get there, I think we should move on.
I'm going to take Mr. Dhaliwal, Mr. Thibault, Mr. Martin, Mr. Hiebert, and Mr.Wallace, and then we will move on to the motions.
Is that acceptable?
An hon. member: Yes.
The Chair: Thank you.
Go ahead, Mr. Dhaliwal.
I hope that Mr. Walsh will remain present for the rest of the meeting. He's been most informative.
What I'm grappling with along the same line, Mr. Walsh, is the question of what trumps what, and what has more power in order of precedence before the court. Is it simply a political game, or a power struggle, or a power match?
We have a summons by the committee. It's incumbent upon the minister, and he has the authority and power to assist us with that summons; or he can do as he is doing now--refuse to assist and just say that he won't send him out of the country before December 1. If I understand correctly, the only option we'd have under it is that if he does it, we can find him in contempt, or we can seek to find him in contempt, of Parliament.
The we can take this as an order the House. We can make a report of this committee to get an order of the House. That would have more power, as you suggest, because it would speak from a larger group. The House of Commons has more clout than does a single committee. But if I understand everything you've told us, we still remain at the same place: it's still a political decision by Mr. Nicholson, and there's no definite law. If I understand what you're saying, it remains a political question. If he refuses to obey the order of the House, again, we could at best seek to find him in contempt of Parliament if Schreiber would be in Bavaria and not available to the committee.
If you look at an order to surrender under the Extradition Act or under ministerial powers, are you saying there's no defined order of priority, order of precedence, or magnitude of power that sets Parliament above a ministerial order?
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Thank you, Mr. Wallace.
Of course, the committee is the master of its own destiny. It can, as a consequence of our discussions, decide that it would like to have an opportunity to recall Mr. Schreiber after Mr. Mulroney appears. That is also a possibility, but that decision has not been taken. It is a subsequent decision of this committee.
We have now finished discussions specifically about my report, but if any members have any questions for me for clarification or if they require any information whatsoever, please ask. You can have anything I have. I have no secrets, no notes, that you can't have. It's open.
Now I would like to move to our motions. We're going to have a little difficulty here—
An hon. member: Why?
The Chair: Because I've had some preconsultation, and....
We have received six motions in total. I am advised by the clerk that the final two from Madame Lavallée have not had 24 hours' notice. For us to consider them, the committee would have to give its consent. But as is our practice, I asked the committee for its concurrence. The committee, I believe, agreed that we would deal with the motions in order of the date and time they were received.
So the first motion to be addressed is a motion from Mr. Pat Martin. I think he knows which one it is. This is to deal with the Speaker's warrants.
Is that correct, Mr. Martin? Are you prepared to move that motion?
We can only recognize members who are authorized members of the committee.
I want to respond to Mr. Martin.
I do understand the predicament here, but I have received from the clerk and from our parliamentary counsel and law clerk that the process prescribed in this motion is not a permitted process. It doesn't work. And to pass it would have no effect whatsoever. We need to find an alternative. Of course, the member also knows that there is no reference whatsoever, in the rules of Parliament or the procedures, to a friendly amendment.
So I've ruled it out of order. I'm going to move to motion two....
It's over.
Is someone rising on a valid point of order, not to move a motion, not to debate something, but on a point of order? If so, indicate so right now.
An hon. member: It's a point of clarification, Mr. Chair.
The Chair: You want to ask questions.
I would recommend that if members have questions to please approach the clerk and ask their questions.
Madame Lavallée, are you moving a point of order, and it is, in your view, in order? If you're not going to debate, please....
All honourable members have the right to do this. I will recognize you. I would ask you to please state the nature of the point of order first, and then you can describe the details. Could you do that, please?
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I'm very flattered by what you just said, Mr. Chairman, but I don't know how much of it would stand the test of time.
However, much of the advice that I might offer from time to time is a function of the particular situation that the committee is in, so it's hard for me to speak now without having a particular situation that's emerged.
Let me just offer these general guidelines. When—and I won't say “if”—Mr. Schreiber is here Thursday morning and speaks to the committee, there might be some sub judice consideration for committee members. In other words, I expect he still will be awaiting a response to his application for leave to appeal in the Supreme Court of Canada, and that matter itself should not be the subject of comment by committee members.
Also, in the course of his testimony it may be that he makes allegations or provides testimony that reflects on third parties who are not yet heard by the committee. I would recommend that committee members be mindful of the fact that these third parties to whom he might refer would not have had an opportunity to say anything yet, and what he may say about third parties should not be used in a manner that's detrimental to the good reputation of third parties, beyond what is necessary for the purposes of hearing Mr. Schreiber's testimony. It's a sense of fairness. That's all I'm saying.
Sometimes, as happened with Radwanski, if my memory serves, it can happen that there are some issues emerging of a kind where third parties are coming up, private citizens. The committee went in camera to hear the testimony, at least initially, to see that nobody was unnecessarily injured or offended by what the testimony might say. I seem to recall on many occasions when the committee came back out of camera that the same testimony was led, because it turned out there was nothing there that was injurious to any third party.
It's a matter of exercising some care about the interests of third parties who may come up in the course of his testimony. You can't predict this; it just may happen. But if it does happen, one should be cautious and not pursue that recklessly, because it may well prove to be untrue, or there may well be an answer by the person that would put a serious qualification on what he's saying. It's a question of fairness, that's all.
Apart from that, the sub judice rule is something to consider.
I don't know, Mr. Chairman, whether I can offer much more than that at this time. We just await the unfolding of events and deal with situations as they emerge.