|
Rules of Procedure and Practice 
1. The Commission proceedings will be divided into two parts. The first part,
the “Factual Inquiry”, will focus on questions relating to the business
and financial dealings between Karlheinz Schreiber and the Right Honourable
Brian Mulroney as set out in paragraph (a) sections 1 through 16 of the Terms
of Reference.
2. The Commissioner will conduct hearings in relation to the Factual Inquiry
as set out in Part I of these Rules.
3. The second part of the Inquiry is a “Policy Review” directed
at making recommendations for ethical rules or guidelines concerning the activities
of politicians as they transition from office or after they leave office and
regarding procedures followed by the Privy Council Office as specified in paragraph
(a) sections 14 and 17 of the Terms of Reference. The Commissioner will conduct
consultations in relation to the Policy Review as set out in Part II of these
Rules.
4. Whenever practicable, applications should be made in writing on notice to
the parties and intervenors, as defined in these Rules. The Commissioner may
determine in any case whether the length of notice provided, if any, was reasonable.
Applicants will be expected to justify notice periods of less than seven clear
days. Parties and intervenors wishing to receive notice of applications shall
provide the Commission with an e-mail address for delivery. The e-mail addresses
will be posted on the Commission’s web site. Notice to a party will be
sufficient if e-mailed to the e-mail address provided on the Commission’s
web site.
5. The Commissioner may amend these Rules or dispense with
compliance with them as he deems necessary to ensure that the Inquiry is thorough,
fair and timely.
6. All parties, intervenors, witnesses and their counsel shall be deemed to
undertake to adhere to these Rules, and may raise any issue of non-compliance
with the Commissioner.
7. The Commissioner shall deal with a breach of these Rules as he sees fit including,
but not restricted to, revoking the standing of a party, and imposing restrictions
on the further participation in or attendance at (including exclusion from)
the hearings by any party, intervenor, counsel, individual, or member of the
media.
8. Subject to the provisions of the Inquiries Act (Canada), the conduct of and
the procedure to be followed on the Inquiry is under the control and discretion
of the Commissioner.
9. In these Rules, the term “documents” is intended to have a broad
meaning, and includes the following formats: written, electronic, audiotape,
videotape, digital reproductions, photographs, maps, graphs, microfiche and
any data and information recorded or stored by means of any device.
10. Commission counsel, who will assist the Commissioner
to ensure the orderly conduct of the Factual Inquiry, have standing throughout
the Factual Inquiry. Commission counsel have the primary responsibility for
representing the public interest at the Factual Inquiry, including the responsibility
to ensure that all matters that bear upon the public interest are brought to
the Commissioner’s attention.
11. A person may be granted full or partial standing as a party by the Commissioner
if the Commissioner is satisfied that the person is directly and substantially
affected by the matters investigated in the Factual Inquiry or portions thereof.
Persons with party standing are referred to as parties in these Rules.
12. The Commissioner may grant intervenor standing to persons who satisfy the
Commissioner that they have a genuine concern about issues raised by the Factual
Inquiry mandate and have a particular perspective or expertise that may assist
the Commissioner. Persons with intervenor standing are referred to as intervenors
in these Rules.
13. The Commissioner will determine on what terms and in which parts of the
Factual Inquiry a party or intervenor may participate, and the nature and extent
of such participation.
14. Applicants for standing will be required to provide written submissions
explaining why they qualify for standing, and how they propose to contribute
to the Factual Inquiry. Applicants for standing will also be given an opportunity
to appear in person before the Commissioner in order to explain why standing
ought to be granted to them.
15. The Commissioner may direct that a number of applicants share in a single
grant of standing.
16. The Commissioner may recommend funding for a party
or intervenor to the extent of their interest, where in the Commissioner’s
view, the party or intervenor would not otherwise be able to participate in
the Factual Inquiry.
17. A party or intervenor seeking funding shall apply to the Commissioner in
writing, demonstrating that he or she does not have sufficient financial resources
to participate in the Factual Inquiry without such funding.
18. Where the Commissioner’s funding recommendation is accepted, funding
shall be in accordance with terms and conditions approved by the Treasury Board
respecting rates of remuneration and reimbursement and the assessment of accounts.
19. Commission counsel may interview any person who has
information or documents that have any bearing upon the subject matter of the
Factual Inquiry. A person may be interviewed more than once. Persons who are
interviewed are entitled, but not required, to have legal counsel present. No
person or organization is required to submit to such interviews.
20. If the witness agrees to be interviewed, he or she may elect to have the
interview proceed on the basis that:
(a) a written transcript of the interview shall be made, in which case, the
transcript will be subject to disclosure and use as described in Rule 21(a);
or
(b) a summary of the gist of the witness’ expected testimony, based
on the interview (“Summary”), shall be made, in which case the
Summary shall be subject to disclosure as described in Rule 21(b).
21. If Commission counsel determines that a person will be called as a witness
following an interview:
(a) that has been transcribed, Commission counsel will provide a transcript
of the interview to the witness, the parties and the intervenors having an
interest in the subject matter of the witness’ evidence, before the
witness testifies before the Commission. At the Part I hearing, the transcript
may be used for cross-examination on prior inconsistent statements;
(b) that has not been transcribed, Commission counsel will provide a copy
of the Summary to the witness, the parties and the intervenors having an interest
in the subject matter of the witness’ evidence, before the witness testifies
before the Commission.
22. Commission counsel will provide to the parties and intervenors the names
of all other persons who were interviewed by Commission counsel but who will
not be called as witnesses.
23. Transcripts of interviews shall only be released to a party or intervenor
upon execution of a confidentiality undertaking by such party or intervenor,
and his or her counsel.
24. The Commissioner may receive any evidence that he
considers helpful in fulfilling the mandate of the Inquiry whether or not such
evidence would be admissible in a court of law.
25. The Commissioner may consider findings, as he considers appropriate, of
other examinations or investigations that may have been conducted into any of
the questions set out in paragraph (a) of the Terms of Reference, and to give
them any weight, including accepting them as conclusive.
26. As soon as possible after being granted standing, all
parties and intervenors shall provide to the Commission all documents in their
possession or under their control having any bearing on the subject matter of
the Factual Inquiry.
27. Where a party or intervenor objects to the production of any document on
the grounds of privilege, the document shall be produced in its original unedited
form to Commission counsel who will review and determine the validity of the
privilege claim. Production of the document for this purpose will not constitute
a waiver of any applicable privilege. The objecting party, intervenor and/or
counsel may be present during the review process. In the event the party or
intervenor claiming privilege disagrees with Commission counsel’s determination,
the Commissioner, on application, may either inspect the impugned document(s)
and make a ruling, or may direct the issue to be resolved by the Federal Court.
28. Upon the request of Commission counsel, parties and intervenors shall provide
originals of relevant documents.
29. Documents received from a party, intervenor, or any other organization or
individual, shall be treated as confidential by the Commission unless and until
they are made part of the public record or the Commissioner otherwise declares.
This does not preclude Commission counsel from producing a document to a proposed
witness prior to the witness giving his or her testimony, as part of the investigation
being conducted, or in respect of to an interview pursuant to Rule 19.
30. All Government entities, agencies and officials and all witnesses shall
cooperate fully with the Commission and shall make available all documents and
witnesses relevant to the mandate of the Commission.
31. Witnesses who testify will give their evidence at a hearing under oath or
upon affirmation.
32. Commission counsel may issue and serve a subpoena or summons upon each witness
before he or she testifies. A witness may be called more than once.
33. Witnesses are entitled to have their own counsel present while they testify.
Counsel for a witness will have standing for the purpose of that witness’
testimony to make any objections thought appropriate and for other purposes
set out in these Rules.
34. Parties and intervenors are requested to advise Commission counsel of the
names, addresses and telephone numbers of all witnesses they wish to have called
and, if possible, to provide summaries of the information the witnesses may
have.
35. If the proceedings are televised, applications may be made for an order
that the evidence of a witness not be televised or broadcast.
36. In the ordinary course Commission counsel will call and question witnesses
who testify at the Inquiry. Counsel for a party may apply to the Commissioner
to lead a particular witness’ evidence in-chief. If counsel is granted
the right to do so, examination shall be confined to the normal rules governing
the examination of one’s own witness in court proceedings, unless otherwise
directed by the Commissioner.
37. Commission counsel have a discretion to refuse to call or present evidence.
38. The order of examination in the ordinary course will be as follows:
(a) Commission counsel will lead the evidence from the
witness. Except as otherwise directed by the Commissioner, Commission counsel
are entitled to ask both leading and non-leading questions. Commission counsel
have an obligation to ascertain the truth and are free to test and challenge
the witness or evidence (cross-examination);
(b) Parties will then have an opportunity to cross-examine the witness to
the extent of their interest. The order of examination will be determined
by the parties and, if they are unable to reach agreement, by the Commissioner;
(c) After the examinations in paragraph (b), counsel for a witness may then
examine the witness. Except as otherwise directed by the Commissioner, counsel
for the witness is entitled to ask both leading and non-leading questions;
(d) Commission counsel will have the right to re-examine last.
39. After a witness has been sworn or affirmed at the commencement of giving
evidence, no counsel other than Commission counsel may speak to a witness about
the evidence that he or she has given until the evidence of such witness is
complete except with the permission of the Commissioner. Commission counsel
may not speak to any witness about his or her evidence while the witness is
being cross-examined by other counsel.
40. When Commission counsel indicate that they have called the witnesses whom
they intend to call in relation to a particular issue, a party may then apply
to the Commissioner for leave to call a witness whom the party believes has
further evidence relevant to that issue. If the Commissioner is satisfied that
the evidence of the witness is needed, Commission counsel shall call the witness,
subject to Rule 36.
41. In advance of a witness’ testimony, Commission counsel will endeavour
to provide to the parties and the intervenors having an interest in the subject
matter of the proposed evidence documents associated with the witness upon execution
of a confidentiality undertaking by such party or intervene, and his or her
counsel. Such undertakings will be of no force regarding any document or information
once it has become an exhibit. The Commissioner may, upon application, release
any party or intervenor in whole or in part from the provisions of the undertaking
in respect of any particular document or other information.
42. Parties shall provide Commission counsel with any documents that they intend
to file as exhibits or otherwise refer to during the hearings at the earliest
opportunity, and in any event shall provide such documents to Commission counsel
no later than two business days before the document will be referred to or filed
at the hearing.
43. Before using a document for purposes of cross-examination, counsel shall
provide a copy to the witness and to all parties having an interest in the subject
matter of the proposed evidence not later than two business days prior to the
commencement of that witness’ testimony.
44. Upon application, the Commissioner may make an order for a grant of “Personal
Confidentiality”, aimed at protecting the identity of a witness. For the
purposes of the Factual Inquiry, Personal Confidentiality shall include the
right of the witness to have his or her identity disclosed only by way of non-identifying
initials, and, if the Commissioner so rules, the right to testify before the
Commission in camera, together with any other privacy measures which the Commissioner
grants.
45. Upon application, the Commissioner may make an order to conduct hearings
in camera when he is of the opinion that intimate financial, personal or other
matters are of such a nature, having regard to the circumstances, that the desirability
of avoiding disclosure outweighs the desirability of adhering to the general
principle that the hearings should be open to the public.
46. A witness who is granted Personal Confidentiality will not be identified
in the public records and transcripts of the hearing except by non-identifying
initials, and the public transcripts may be redacted to exclude any identifying
details. Any reports of the Commission using the evidence of witnesses who have
been granted Personal Confidentiality will use non-identifying initials only,
and may exclude reference to identifying details.
47. Media reports relating to the evidence of a witness granted Personal Confidentiality
shall avoid references that might reveal the identity of the witness. No photographic
or other reproduction of the witness shall be made either during the witness’
testimony or upon his or her entering and leaving the site of the Inquiry.
48. Any witness who is granted Personal Confidentiality may either swear an
oath or affirm to tell the truth using the non-identifying initials given for
the purpose of the witness’ testimony.
49. Any party, intervenor or witness may apply to the Commissioner to have intimate
financial or personal information that is not relevant to the subject matter
of the Inquiry redacted from documents proposed to be introduced into evidence
and may apply to the Commissioner to have the issue heard at an in camera hearing.
50. All media representatives shall be deemed to undertake to adhere to the
rules respecting Personal Confidentiality. A breach of these Rules by a media
representative shall be dealt with by the Commissioner as he sees fit.
51. All evidence shall be categorized and marked P for public sittings and C
for sittings in camera.
52. Copies of the P transcript of evidence will be made available on the Inquiry’s
website. One copy of the P transcript and the P exhibits of the public hearings
will be made available for public review at the Commission offices.
53. Only those persons authorized by the Commission, in writing, shall have
access to C transcripts and exhibits.
54. The Policy Review will proceed in four phases:
(a) The Commission will publish a consultation paper (the “Consultation
Paper”). The Consultation Paper will examine ethical rules or guidelines
that would currently cover the business and financial dealings concerning
the activities of politicians as they transition from office or after they
leave office, and procedures of the Privy Council Office applicable in the
circumstances in this case, which might serve as a basis for an assessment
of whether they are sufficient or whether there should be additional ethical
rules, guidelines or procedures applicable in such situations.
(b) The Commission will receive submissions in writing from members of the
public (the “Public Submissions”) dealing with any matter related
to the Policy Review including comments on any matter raised in the Consultation
Paper and including specific proposals for the recommendations to be made
by the Commissioner.
(c) The Commissioner, in his discretion, may authorize the commissioning of
expert research papers, and/or the convening of Expert Policy Forums for use
in the preparation of the recommendations to be made by the Commissioner.
(d) The Commissioner will convene public and private consultations (the format
of which may vary) to hear submissions from parties and intervenors on the
matters raised in the Policy Review.
55. The Commission will publish the Consultation Paper on the Commission’s
web site.
56. Any member of the public and any party or intervenor
may make a Public Submission, in writing, to the Commission dealing with any
matter related to the Policy Review including comments on any matter raised
in the Consultation Paper.
57. The Commissioner will set a deadline by which all Public Submissions must
be received.
58. Where the Commissioner convenes Expert Policy Forums for use in the preparation
of the recommendations to be made by the Commissioner, the Commissioner may
modify the Rules for oral examination of witnesses applicable to Part I –
Factual Inquiry as he deems appropriate, so as to allow persons with standing
in relation to the Policy Review to participate appropriately in relation to
the evidence of the panel in question.
59. Once all Public Submissions have been reviewed, the
Commissioner will convene a public consultation or consultations relating to
the major topics addressed in the Policy Review. The format of the public consultations
will be tailored to the topics discussed, and may vary.
60. The Commissioner will determine whether, on what terms and on what basis
persons who have submitted a written Public Submission may participate in the
public consultations.
61. The public consultations shall be recorded.
62. At his discretion, the Commissioner may also conduct private consultations.
63. A person may be granted full or partial standing as
a party by the Commissioner if the Commissioner is satisfied that the person
is directly and substantially affected by the mandate of the Policy Review or
portions thereof. Persons with party standing are referred to as parties in
these Rules.
64. The Commissioner may grant intervenor standing to persons who satisfy the
Commissioner that they have a genuine concern about issues raised by the Policy
Review and have a particular perspective or expertise that may assist the Commissioner.
Persons with intervenor standing are referred to as intervenors in these Rules.
65. The Commissioner will determine on what terms and in which parts of the
Policy Review a party or intervenor may participate, and the nature and extent
of such participation.
66. Persons who apply for standing will be required to provide written submissions
explaining why they wish standing, and how they propose to contribute to the
Policy Review. Persons who apply for standing will also be given an opportunity
to appear in person before the Commissioner in order to explain the reasons
for their application.
67. The Commissioner may direct that a number of applicants share in a single
grant of standing.
68. The Commissioner may recommend funding for a party
or intervenor to the extent of their interest, where in the Commissioner’s
view the party or intervenor would not otherwise be able to participate in the
Policy Review.
69. A party or intervenor seeking funding shall apply to the Commissioner in
writing, demonstrating that he or she does not have sufficient financial resources
to participate in the Policy Review without such funding.
70. Where the Commissioner’s funding recommendation is accepted, funding
shall be in accordance with terms and conditions approved by the Treasury Board
respecting rates of remuneration and reimbursement and the assessment of accounts.
|
