APEC

February 28, 2000
Ottawa, Ontario 

Attached is the text of a letter from Ivan Whitehall, Chief General Counsel, Department of Justice, that was delivered - at 9:58 AM PST in Vancouver - to the Honourable Ted Hughes, Designated Member of the RCMP Public Complaints Commission care of Commission Counsel Barbara Fisher. 

- 30 -

PMO Press Office: (613) 957-5555 

***

Dear Mr. Commissioner Hughes: 

I am writing with respect to your decision dated February 25^th, 2000. You have stated very clearly the reasons why the testimony of the Prime Minister is not required for you to carry out your responsibilities as Commissioner in the matter before you. You emphasize, in particular, that there is no evidence pointing to the Prime Minister's involvement in APEC security arrangements and therefore no basis for calling him to testify. 

You state: 

... I simply cannot see that the voluminous evidence adduced to date points to or suggests that the Prime Minister may have given improper orders or directions to RCMP members respecting security at the APEC Conference. As the testimony thus far does not indicate that any such orders or directions were given by the Prime Minister, a summons ought not to be issued for the purpose of sanctioning what, at this point, would be little more than an exploratory excursion. The simple fact of the matter is that the evidence produced to date regarding the alleged involvement of the Prime Minister in the RCMP's security operations does not indicate that his testimony is ‘requisite to the full investigation and consideration' of the matters currently before me. (pp. 12-13 )

You go on to note: 

I agree with Commission counsel that ‘...there is no evidence that the Prime Minister had any direct involvement in the establishment of either the ‘event perimeter or the security zone at UBC' and that, accordingly, a basis does not exist for calling him to testify in respect of this issue..... After full consideration of [the ‘Indonesian issue' and the ‘law school fence issue'], ...I have concluded that the evidence in respect of these two issues does not justify issuing the requested summons. Having reached that conclusion, I have had little difficulty in concluding that the other grounds advanced by the applicants do not support the issuance of a summons. (p. 14) 

You also confirm your earlier ruling that "if there is evidence to suggest that the impugned RCMP conduct resulted from orders or directions respecting security given by the Prime Minister or the Prime Minister's Office, I may inquire into such orders or directions...." (p. 9). That said, you unequivocally conclude that the Prime Minister's "testimony is not required in order for me to discharge my duties...." (p. 18) You also state "that the potential public perception of injustice does not justify the issuance of a summons." (p. 17) 

You nevertheless invite the Prime Minister to testify -- to avoid a possible ‘cloud' over your Report -- if the Prime Minister "share[s] my view that it would be in the public interest for him to do so." (p. 18) You clearly state, however, that any ‘cloud' over your Report arising from the absence of testimony by the Prime Minister would be "unjustified" (p. 18). I fully agree. Indeed, if the Prime Minister were to accept your invitation to testify, he could only repeat what he has already said many times publicly and what you have already found: that he did not give improper orders or directions to RCMP members respecting security at the APEC Conference. 

You will appreciate the seriousness with which the government must view a decision for a Prime Minister to testify before an inquiry. It is incumbent upon the Prime Minister to make his decision based upon the public interest as it relates to the roles and responsibilities of the office of Prime Minister and based upon your finding that his testimony is not necessary. 

As you will be aware, the appearance of a sitting Prime Minister before a commission is an extremely rare and weighty matter having only happened twice in our history. In 1873, Sir John A. Macdonald appeared before the Royal Commission on the Pacific Railway. In 1980, Prime Minister Trudeau testified in camera before the McDonald Commission Inquiry into Certain Activities of the RCMP. The rarity of a Prime Minister's appearing before a commission is the result of both the serious implications of such an appearance and the very high threshold that must be met to justify requesting a Prime Minister to testify. 

For a Prime Minister to testify before an inquiry risks interfering with the duties and responsibilities of the office and ultimately could impede the operation of the Canadian government. It would be especially damaging to the office of Prime Minister and the proper functioning of the government were the appearance of a Prime Minister before an inquiry to be seen as a precedent that could lead to other litigation calculated to disrupt the good governance of the country. 

It is clear that a Prime Minister should testify only in the most exceptional of cases where the testimony of the Prime Minister is absolutely necessary to establish facts that are essential to the resolution of the matter and which cannot be proven, directly or indirectly, in any other manner. In these circumstances, as you state, "the Prime Minister is just as subject to being summonsed.... as any other person in the land." (p. 17) However, the test must be whether a Prime Minister has probative evidence to give based on his personal knowledge about which no other person could testify and which is necessary to resolve the matter. In this case, not only is that test not met, you have found that there is simply no evidence pointing to the involvement of the Prime Minister. 

Accordingly, you have made it crystal clear that the Prime Minister's "testimony is not required in order for me to discharge my duties." (p. 18) In light of this conclusion and the public considerations weighing against a Prime Minister's testifying, it is apparent that the public interest would be badly served if the Prime Minister were to accept your invitation simply because of an erroneous view that the Prime Minister's evidence is necessary for public confidence in your final Report. 

Indeed, there would be no limit to the number of inquiries where a Prime Minister in the future might be asked to appear not because the evidence warranted an appearance but because it would lend credibility to an inquiry. For all of these reasons, the Prime Minister cannot accept your invitation. 

Sir, your reputation is such that there can be no ‘cloud' over any Report you sign based on the evidence adduced before you which is necessary for the discharge of your duties.
 
Original signed by Ivan Whitehall 
Chief General Counsel Department of Justice