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Analysis

How did Mulroney fare?

After losing a point on his $2-million defamation settlement, the former PM wrestled control of the cross from counsel and won the day, lawyers Sean Dewart and Tim Gleason write

Special to Globe and Mail Update

OTTAWA — Any lawyer would savour the opportunity to cross-examine Canada's 18th prime minister.

He is, after all, the witness who said he would appear at the Oliphant inquiry "with bells on" to explain why in the world legitimate business services would be pre-paid with hundreds of thousands of dollars in cash, surreptitiously delivered in motel rooms, in plain brown envelopes. This is only one of a number of things that cry out for explanation. There is a lot of apparently low-hanging fruit here for a lawyer to have fun with.

Thursday morning, commission counsel Richard Wolson had his turn at the brief of a lifetime. He launched into the cross-examination with determination and spent the morning challenging Mr. Mulroney to explain his earlier controversial evidence, in his infamous lawsuit against the government of Canada. This is the lawsuit where the former prime minister claimed his reputation had been harmed, to the tune of $50-million, by the very suggestion that he would enter into questionable dealings with Karlheinz Schreiber. In his sworn evidence in that lawsuit, he put huge distance between himself and Mr. Schreiber, and omitted to mention their cash-only deals when he described their supposedly limited "contact" over coffee.

Mr. Wolson started by reminding old No. 18 of the oath he had given on discovery to tell the whole truth. This was a pointed admonition for this witness, who was at pains to explain that, as far as he is concerned, it is fair to seize on a perceived imprecision in a line of questions and to use the supposed ambiguity as an opportunity to withhold a full accounting of his conduct. It was imprecise questioning by the previous lawyers, Mr. Mulroney explained, that kept the whole truth from emerging before the people of Canada shelled out $2-million by way of settlement.

A witness with such a view of the world presents some challenges to a cross-examiner. One must be careful to ask all of the "right questions," to ensure that the witness is not unduly economic in his or her responses.

Cross-examiners can also face a different type of challenge. Witnesses who hate giving specific answers love to give long speeches. This can put everyone to sleep, or at least throw them off the scent. One can hardly be surprised by an ex-politician who loves to make a speech, but it sure can bog things down if the witness insists that every question be utterly specific, yet every answer be utterly vague.

Mr. Mulroney explained his understanding of the oath to tell the whole truth on a discovery, which is apparently different in Quebec. He says this distinction from the English common law, and our collective ignorance of it, explains the incredulity expressed by William Kaplan, and others, at his limited evidence in the previous case.

When this line of defence apparently failed to impress the (ordinarily restrained) commissioner, Mr. Justice Jeffrey Oliphant, Mr. Mulroney switched tacks and attributed the strategy to his lawyers. Apparently, they told him that the preferred course was to give narrow, incomplete, or at least circumspect answers.

The result, however, was that the whole truth was concealed and on that basis the Canadian taxpayers paid Brian Mulroney $2-million.

That was the high point of the day. Unfortunately, in the afternoon the proceeding succumbed to the witness's proven flair for dominating any discourse. Mr. Mulroney was able to wrestle control of the cross from counsel and the afternoon degraded into a plodding recitation of the documentary evidence, punctuated only by Mr. Mulroney holding forth on the propriety of his conduct. In the end, it made for bad television, which means Mr. Mulroney won the day.

We nevertheless have high hopes for Friday. We expect that Mr. Wolson will be able to regain control of the examination and focus the witness on the questions about which Canadians have long wondered. There are really only a small handful that absolutely must be answered, including:

  • How plausible is it that he engaged in questionable cash dealings with Karlheinz Schreiber because he was traumatized by allegations that he might have been engaged in shady cash dealings with Karlheinz Schreiber?

  • Is there ever a reason for dealing in large amounts of cash, other than to conceal the dealings from scrutiny?

  • How often did Mr. Mulroney engage in similar cash deals?

  • Why have there been different explanations over the years for why he received the money?

  • What possible reason could he have had for destroying the only documentary alibi evidence he had relating to the services he claims to have provided for the money?

    Sean Dewart and Tim Gleason are partners in the Toronto law firm Sack Goldblatt Mitchell LLP.

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