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- Introduction
- By my Ruling dated July 19, 2004, I recommended public funding to the Conservative Party of Canada and the Bloc Québécois, which have intervenor status before the Inquiry. They are entitled, as detailed in the Ruling, to payment of the fees of their lawyers limited to three hours a day for a junior lawyer and one hour per day for a senior lawyer, with additional amounts for pre-hearing preparation, for the representations during the hearings, and for closing submissions. At that time I stated that I would remain open to the possibility of amending these recommendations as circumstances might dictate, on application.
- Both the Conservative Party and the Bloc Québécois are now applying for a recommendation for increased funding. At the same time the Liberal Party of Canada, which was granted intervenor status on September 13, 2004, asks for funding for the first time. All three applications were presented on October 20, 2004 and were taken under advisement. The present Ruling will deal with them together.
- Analysis
- The application of the Liberal Party of Canada takes it for granted that it would at least be entitled to the same funding recommendation as has been already granted to the two other political parties. At first glance this is a reasonable assumption, except that the belated arrival upon the scene of the Liberal Party of Canada, after the hearing of witnesses had commenced, reduces its need of the same allocation for pre-hearing preparation. In addition, it is not my intention to recommend funding on a retroactive basis, which means that the Liberal Party will be entitled to receive funding for the services of its attorneys only from the date of its application; whatever legal costs may have incurred prior to that date will have to be financed from its other resources.
- All three applicants argue that the amounts allowed by my earlier Ruling are inadequate to enable them to participate in the Inquiry as fully as they would wish, and as needed to fulfill their responsibilities, as they define them. They refer to the voluminous documentation which has been and is being communicated to them as the hearings advance, and the time required to peruse it carefully. They also invoke the difficulty of reading and comprehending daily transcripts when the exhibits referred to by witnesses may not be readily at hand, and the impossibility of suggesting questions in a timely way to Commission counsel, for submission to witnesses.
- On this latter question, there is clearly a misunderstanding as to the intended role of these Intervenors. Although section 8 of the Rules of Procedure and Practice indicates that an Intervenor's participation includes "the opportunity to suggest areas for examination of a certain witness by Commission counsel, failing which, the opportunity to request leave to examine the witness on such areas", this right is at the Commission's discretion. It should have been obvious to the parties concerned that since it was not contemplated that they would be present at the Inquiry's hearings but would limit their participation to an examination of the daily transcripts, they would be, for all practical purposes, unable to suggest particular questions to witnesses, who would usually have completed their testimony before any such suggestions could be submitted, on details of their testimony. In other words, time spent formulating such questions would be wasted time and unnecessary. The Intervenors should instead be giving their attention to suggesting areas of inquiry relevant to their perspectives as office-holders or parliamentarians.
- In general, it appears to me, from the written applications and the oral representations made by counsel for the three applicants, that they have generally misapprehended the scope of their participation in this Inquiry, and what the Commission expects of them.
- On July 5, 2004, when the Conservative Party of Canada and the Bloc Québécois were granted the status of Intervenors at the Inquiry, I took care to explain that they were not being granted full participation because of the danger that that would introduce an element of partisan debate to the Inquiry which would be better left to another forum. With the subsequent arrival upon the scene of the Liberal Party of Canada, this consideration is reinforced. The only reasons these political parties have been granted intervenor status are those expressed in the following extract from the decision, referring to the Conservative Party:
- The Conservative Party of Canada represents a substantial body of opinion in Canada. It has a valuable perspective on public administration, the roles of office-holders and parliamentarians, and the process through which public funds are disbursed. The Commission would accordingly benefit from its participation, assistance and representations as an Intervenor.
- The same reasoning applies to the Bloc Québécois and the Liberal Party of Canada.
- In my opinion, in order to assist the Commission's work, it is not necessary for the Intervenors to analyze the daily transcripts with the attention which would be required of a lawyer mandated to defend the interests of a client. The three applicants have no interests to defend in the Inquiry. To the extent that they have interests, these should not be the concern of their counsel, but rather the public interest. The transcripts need only be examined by them with a view to the submissions which they will be making from time to time, but mainly at the end of the Inquiry.
- With respect to documentation, counsel for the Intervenors should take cognizance only of the documents which form part of the record, since it is only that evidence which I will take into consideration in making my findings and recommendations. The remaining documentation communicated to the other participants may be of interest to the latter, who have the interests of their respective clients to defend, but the Intervenors, who do not represent clients having direct and substantial interests effected by the Inquiry, may safely ignore it.
- I am not persuaded that counsel for the Intervenors require more funding than what has already been recommended. Probably the task of summarizing the daily transcripts will take longer on some days than the three hours allowed, but almost certainly on other days less time will be required. Counsel should seek alternative methods of facilitating their work, with a view to economizing public funds as much as possible. The drain upon the public purse caused by the work of the Commission should be minimized.
- I am conscious of the possibility that at some point in the future, it may be necessary for one or other of the present applicants to seek the standing of a full participant. Should such an application be justified, the party concerned will then be entitled to ask for a revision of my recommendation with respect to funding.
- Disposition
- The applications of the Conservative Party of Canada and Bloc Québécois for a modification of my Ruling dated July 19, 2004 on recommended funding are dismissed.
- The application of the Liberal Party of Canada for funding is granted as follows:
- I recommend that limited funding be granted to counsel for the Liberal Party of Canada to the same extent that was recommended to the Conservative Party of Canada in the Ruling dated July 19, 2004, except that pre-hearing preparation should be limited to 20 hours of work for each lawyer, and funding should not otherwise be granted for services performed prior to October 20, 2004.
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John H. Gomery, Commissioner
Dated at Ottawa October 26, 2004 |
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