Wednesday, November 28, 2007

Constitutional conflict resolved

It's rare that you see a true and genuine constructional conflict in the political realm with as many interesting qualities as this one.

In case you missed it, Karlheinz Schreiber, in custody of the crown, is now under subpoena to appear before a House of Common committee.  The Speaker of the House issued a “Speaker's warrant” to force his appearance.

Bet you didn't know a parliamentary committee could do that!

This rare procedure was forced by the actions, or inactions by Justice Minister Rob Nicholson.  He insisted he lacked the ability to prevent Schreiber's deportation on Dec. 1. 

Experts directly contradicted Nicholson's claim that that he has no power under the Extradition Act to stay Schreiber's removal, and furthermore, that Schreiber is being held in an Ontario jail.  According to the Globe, Nicholson was pilloried:

"It ought to be straightforward," Mr. Walsh, the impartial Commons legal counsel, told MPs on the ethics committee. "It's within the power of the Justice Minister. It's his call. It's his judgment."

Deputy Liberal leader Michael Ignatieff accused Mr. Nicholson of "defying the will of Parliament."

"He refuses to delay extradition, claiming that he has no such authority. But he is wrong, the minister has the power to choose the date Canada surrenders Schreiber to Germany," Mr. Ignatieff said.

Errol Mendes, a law professor at the University of Ottawa, said he was "astonished" by the minister's comments, given that the Ontario Court of Appeal has said the "ultimate decision" in extradition matters is political.

"I'm not sure if [the minister] really understands the extradition process," he said.

Mr. Schreiber's lawyer, Edward Greenspan, accused the Harper government of wanting to get the lobbyist out of Canada, despite plans to hold a public inquiry into his past dealings with former prime minister Brian Mulroney.

Nicholson's uncooperative stance set in motion a rush to secure the first Canadian Speaker's warrant issued 1913.

According to the House of Commons Procedure and Practice (edited by Robert Marleau and Camille Montpetit):

Censure, Reprimand and the Summoning of Individuals to the Bar of the House

On a number of occasions in the late nineteenth and early twentieth centuries, individuals were summoned to appear before the Bar of the House. The Bar is a brass rod extending across the floor of the Chamber inside its south entrance beyond which strangers are not allowed.

Individuals who are in contempt of the House — that is, are guilty of an offence against the dignity or authority of Parliament — may be formally summoned by the House to appear before it, if the House adopts a motion to that effect. When summoned, the individual stands at the Bar. The House has ordered Members to attend in their places in the House and has summoned others to the Bar of the House, to answer questions or to receive censures, admonitions or reprimands. Although, at first view, this may not appear to be a punishment, the summoning of a Member to attend in his or her place or of an individual to the Bar is an extraordinary event which places the Member or individual under the authority of the House vested with its full disciplinary powers.


In 1913, R.C. Miller, a witness before the Public Accounts Committee, refused to answer questions. This was reported to the House, whereupon it adopted a motion summoning Mr. Miller to appear before the Bar and answer questions. Mr. Miller made two appearances before the Bar and on both occasions was permitted to have counsel. He was directed to withdraw after he refused to give the information requested by the Committee. The House then adopted a motion stating that Mr. Miller was in contempt of the House and that he should be imprisoned. Mr. Miller was again brought before the Bar and the resolution was read to him. [212]

At that time, apparently, Montreal businessman R.C. Miller of the Diamond Light and Heating Company was called before a committee to explain $41,000 in grease money related to heating contracts.  He refused to say who he gave the money to and ended up being consigned to the county jailhouse for the duration of the parliamentary session.  You can read about it here.

Schreiber is being held at the Toronto West Detention Centre, where he's awaiting extradition to Germany on charges of bribery, fraud and tax evasion.

A full-blown crisis was averted Tuesday evening when Nicholson allowed the negotiation of logistics of escorting Schreiber from that jail cell in Toronto to the parliamentary hearing 500 kilometres away in Ottawa and the Speaker's warrant was drafted and sent to Toronto.  Schreiber will remain in the secure escort of police and the House of Commons Sergeant-at-Arms and will spend his nights at a local detention centre if he needs to remain in Ottawa for more than a day.

It's not everyday the House of Commons issues an order to pluck a person from the custody of the Crown in order to extract information.

In a showdown between the crown and the people, the people prevailed.

Now let's see if this all comes to pass.

No comments: