Thank you, Mr. Chairman. I know we have only 45 minutes before the vote, so I will read my opening statement.
But I'll try to shorten it because I understand there'll be questions, and time is running.
I believe the opening statement has been distributed to members of the committee, so you have it. But I prepared it to provide a framework within which you might ask questions about the Airbus litigation.
I recall in the opening statement, Mr. Chairman, that I served as Minister of Justice and Attorney General of Canada between November 1993 and June 1997. I recall as well that in the Department of Justice at the time, and I believe it's still the case today, there is something called the International Assistance Group, a group of lawyers who concern themselves with providing advice to the Government of Canada in relation to matters involving other governments, including extradition, and also where police forces in Canada cooperate with police forces elsewhere in terms of investigations.
Among other things, the IAG, or International Assistance Group, transmits requests to foreign authorities by Canadian police services for assistance in investigations. The practice, at least when I was there in the 1990s, was for the Canadian police service in question to prepare a letter of request for the cooperation of the foreign police, bring it to the IAG, the lawyers there would ensure it was in appropriate form for the foreign government, and then it would be sent by the Government of Canada to that foreign government as a formal request for assistance.
I understand from the Department of Justice that as of 1995 there were between 100 and 150 requests for assistance, or letters of request, that went overseas from Justice on behalf of police departments in Canada every year.
Mr. Chair, these letters of request were always treated by the Department of Justice and the requesting police force with the utmost confidentiality, because they dealt with ongoing investigations into the activities of named persons. I am told that there has never been an instance before this one in which the contents of a letter of request became public, notwithstanding that some of them reportedly named other well-known figures.
I should add that the policy and practice of the Department of Justice in each one of these cases was not to inform or to involve the Minister of Justice or the minister’s office in any way before sending a letter of request. Because the letters requested assistance in ongoing police investigations, the minister had no role to play and could not properly either approve or disapprove of the letter going forward. Whether to send the letter was a matter for the police, and it would be improper to have the Minister of Justice and Attorney General deciding whether or how police investigations are carried on.
We all know, Mr. Chairman, that on September 29, 1995, a letter of request was forwarded to the Swiss authorities on behalf of the RCMP in relation to the Right Honourable Brian Mulroney, among others. The letter sought the assistance of the Swiss authorities in an RCMP investigation. In keeping with the justice department’s practice, I was not informed or consulted before that letter was sent.
In fact, I first learned of it on Saturday, November 4, 1995, when I was telephoned at home by Roger Tassé, who was one of the lawyers for Mr. Mulroney. After he briefly told me the nature of his call and what he wanted to talk about, I asked that he speak with my deputy minister, which he did.
On the following Monday, which was November 6, I read the letter of request for the first time. The officials at the justice department recommended that the matter be referred to the RCMP, on whose behalf the request was sent. Mr. Mulroney's lawyers wanted the letter withdrawn, but I was informed by Justice and RCMP officials that it could not be withdrawn because it had already been acted upon. It had been sent overseas. It had been taken by the Canadian consular officials to the Swiss bank, and indeed, copies had been given to the account holders, Mr. Schreiber and Mr. Moores.
There was also a concern that if an effort was made to withdraw it, we might draw more attention to it than we would have otherwise. Remember that during this period, it still had not been in the Financial Post.
But the Department of Justice did send a follow-up letter, making two points to the same Swiss authorities: first of all, emphasizing that everything in the letter of request was in the nature of an allegation only—there had been no findings, only an investigation—and that the letter must be read as comprising allegations; and secondly, underlining the crucial importance of scrupulously respecting the confidentiality of these communications. That letter was sent over to the Swiss authorities on November 14.
Mr. Chairman, on November 18, 1995, the Financial Post published a story about the letter of request, quoting at length from its contents. To this day—subject to what I'll say in a few moments about expert evidence that the government obtained on the question—there's really been no explanation as to how the Financial Post obtained that letter of request.
Mr. Chair, on the same day, November 18, 1995, Mr. Mulroney's lawyers called a press conference to announce that they were launching a libel action against the Government of Canada and the RCMP seeking $50 million in damages.
The government and the RCMP defended that action, and from time to time, the parties made efforts to resolve the litigation short of going to trial. As part of the litigation proceedings, Mr. Mulroney was examined under oath and was asked questions about various relevant matters. The answers Mr. Mulroney gave under oath led the government to conclude that he had not had any dealings with Mr. Schreiber.
As the government and the RCMP prepared for trial, we relied upon two defences in responding to the lawsuit.
First was that any communication by or on behalf of the Government of Canada, so long as it was in good faith and for a proper public purpose, was protected by either absolute or qualified privilege, so that no civil action could be brought in respect of it. And we had expert evidence to support that position.
The second defence was that none of the defendants actually published the libel. This defence arose from the fact that the letter, as served on Mr. Schreiber, was in the German language. In the days after it was served on him, someone arranged for lawyers in Switzerland to translate the letter into English. We called it the Blum translation.
We retained an expert who prepared a report that we intended to rely upon at trial to prove that the version of the letter published in the Financial Post was the Blum translation. Our expert identified what she called “a linguistic fingerprint” that demonstrated the link. If we could establish in the courtroom that the reporter was working from the Blum translation, that would suggest that persons other than the defendants had published the libel.
Shortly before trial, the Department of Justice learned that a member of the RCMP had disclosed to a third party, sometime in late 1995, the fact that the letter of request included the name of Mr. Mulroney. Counsel advised me that this unauthorized disclosure, if entered into evidence at the trial, would destroy our first defence—namely the defence of privilege—and weaken our second defence, which had to do with the publication. In those circumstances, I instructed counsel to reopen negotiations to see whether the litigation could be settled, and those negotiations resulted in the settlement agreement that Solicitor General Herb Gray and I announced on January 7, 1997.
There have been suggestions from time to time, from the outset in this matter, that the RCMP investigation was initiated either by me or other political figures for partisan or vindictive reasons. The settlement agreement, which was personally signed by Mr. Mulroney, sets out his position on that question. In paragraph 8 of the agreement, the parties acknowledged that the procedure used in sending the letter of request in this case was the same as that followed on numerous occasions under both the Mulroney and the Chrétien governments. In paragraph 9 of the settlement agreement, the parties acknowledged that the RCMP on its own initiated the Airbus investigation, that I was not involved in the decision to initiate it, and that before November 4, 1995, I was not aware of the letter of request.
Let me close simply by saying that although the justice department had a long history of sending letters like this in language such as that used in this case, I think we all learned from this instance, and certainly it was my belief that using language that is conclusory, when you're talking about, really, allegations, is wrong. So I directed, after I read the letter of request in this case, that the practice in the Department of Justice change, and it changed. I also appointed the Honourable Allan Goodman, who is a retired justice of the Court of Appeal for Ontario, to look into the whole of the procedure involving letters of request. He made a report with recommendations in early 1997, and I accepted and put into place all of his recommendations.
Mr. Chair, I hope committee members will find this brief summary useful. I would be happy to respond to any questions you might have.
