In a court of law, Justice Jeffrey Oliphant would likely dismiss a case against Brian Mulroney at this juncture.
With the fact-finding part of the commission’s work completed, Oliphant has been presented with no proof that criminal behaviour was involved in the relationship of the former prime minister and lobbyist Karlheinz Schreiber.
But the commission operates within different parameters and its purpose is not to make criminal findings. Instead, it’s Oliphant’s unique and rather unenviable task to pronounce on the behaviour of a former Canadian prime minister.
According to his terms of reference, Oliphant is expected to answer 17 questions in his year-end report. To do that, he will have to determine whether he finds either of Mulroney’s or Schreiber’s conflicting versions credible. That will not be an easy call.
The two former associates agree neither on the sum they exchanged, nor on the purpose of the payments. Neither has written evidence to back him up. Both stories have changed substantially over the years.
The first five questions deal with the timing of the beginning of the business relationship between the two men and the nature of the mandate involved.
If Oliphant went with Schreiber’s version of events, he could conclude that Mulroney negotiated his lobbying services while he was still in office and with the goal of lobbying his former government. Both would amount to significant ethical breaches.
Alternatively, Mulroney has maintained that he had no business relationship with Schreiber until he stepped down as prime minister and that his activities were restricted to the international scene.
What is certain is that the two men met around the time that Mulroney was handing over the reins to Kim Campbell and that money changed hands between them for the first time while he was still an MP.
There is no evidence that Mulroney ever lobbied the Canadian government on Schreiber’s behalf. But then, after his party was wiped off the map in the 1993 election, there was no one left to lobby on Parliament Hill.
The next five questions deal with the nature of payments and the actual services performed in return.
Here again, the commission is in muddy waters. With the exception of a draft mandate, put together after the fact by the Mulroney clan, there is no paperwork to back up the terms of the cash transactions.
The heads of state Mulroney says he approached as part of his mandate have all passed away. The former prime minister kept no written record of his expenses and he only reported verbally.
In total, Mulroney had fewer face-to-face encounters with Schreiber after he took up a mandate on his behalf than over his time as prime minister.
Three more questions deal with the fiscal treatment of the money. It was declared for income tax purposes, but only after the fact and at a time when its existence was about to become public.
The last three questions deal with Stephen Harper and opposition allegations that he tried to protect Mulroney by expediting Schreiber’s extradition to Germany and dismissing an accusatory letter the lobbyist sent him in 2007. The prime minister maintains he did not see the letter.
In the end, question 11 is the pivotal one.
It asks: “Were these business and financial dealings appropriate considering the position of Mr. Mulroney as a current or former prime minister and member of Parliament?”
That answer will go in the history books.
Chantal Hebert writes for The Toronto Star Syndicate.