Leaked Documents and Confidentiality: A Treaty Investigation in Jeopardy

Strategic Insights -

A controversy has erupted in Canada over the leak of confidential documents related to a treaty between Canada and Switzerland on criminal investigations. The leak occurred after a letter from the federal Justice Department was sent to the Swiss federal public prosecutor's office, requesting information about the sale of airplanes to Air Canada in 1988. The treaty, which came into force on November 17, requires strict confidentiality and no sanctions for breaches of confidentiality.

Key Takeaways:

  • A treaty between Canada and Switzerland on criminal investigations did not come into force until weeks after the federal Justice Department requested Swiss help in determining whether former Prime Minister Brian Mulroney received improper payments in connection with the sale of airplanes to Air Canada.
  • The treaty came into effect on November 17, weeks after the federal Justice Department made the request in a letter dated September 29 and delivered by diplomatic messenger on October 3 in the Swiss capital.
  • The Mutual Legal Assistance Treaty between Ottawa and Bern on the exchange of information in criminal matters demands strict confidentiality, and no sanctions are provided for breaches of confidentiality.
  • Justice Minister Allan Rock has stated that he will be asking for an RCMP investigation into the leak of confidential information contained in Canada's request.
  • The Swiss federal public prosecutor's office issued an order on October 26 requiring a branch of Swiss Bank Corp. in Zurich to freeze any and all accounts and deposit boxes belonging to former Prime Minister Mulroney, former Newfoundland Premier Frank Moores, and German-Canadian businessman Karl-Heinz Schreiber.
  • Former Prime Minister Mulroney's lawyers have announced their intention to file a lawsuit against the government and the RCMP, claiming that the document had defamed him.
  • A spokesman for Mulroney has denied that anyone from the Mulroney camp leaked the document, and a reporter who broke the story has also denied leak involvement.
  • Irene Arseneau, a Justice Department spokeswoman, confirmed that the Swiss-Canadian MLAT was not in force at the time of the Airbus-related request, but said government officials observed the spirit of the MLAT, which had been negotiated for several years.

Statistics:

  • The treaty allows for the exchange of information between Canada and Switzerland on investigations or legal proceedings related to offences under federal or provincial law in Canada and under the Swiss penal code or other laws of the federation or of a canton.
  • Canada makes approximately 150 MLAT applications yearly for information regarding criminal matters.
  • Canada has similar agreements, called renditions, with approximately 20 Commonwealth countries.
  • The 32-article Swiss-Canadian MLAT defines the obligations of both countries to provide mutual assistance in investigations or legal proceedings, including the exchange of information, execution of requests involving compulsory measures, serving documents, and making detained persons available.
  • Requests for assistance under the treaty must include the name of the authority responsible for the investigation or proceedings, the purpose and reason for the request, and a summary of the facts in the requesting state.

Sources:

  • The Globe and Mail, November 26, 1994
  • The Financial Post, November 18, 1994
  • Government of Canada, Department of Justice
  • Swiss Federal Public Prosecutor's Office
  • Bern, Switzerland