20 July 2006

The fruits of the poisonous tree

"We've released any constraints that would apply to the Auditor General being able to complete his audits...there are no more constraints."
Speaker of the House of Assembly Harvey Hodder, The Telegram, 20 July 2006

This is a noble sentiment except for one problem:

We never knew the Auditor General's previous reports completed within the past month were in any way constrained. To the contrary, we were assured that they were complete and thorough and that the AG was acting with full approval of the appropriate authorities.

So now we have to ask:
What were the constraints?

Who applied the constraints?

Why were they applied?

Hodders comments merely raise more questions that go to the heart not only of the financial scandal itself but now to the Keystone Kops-like way in which government and the House of Assembly have responded.

Hodder's interview with CBC radio Morning Show on Thursday just adds to the questions.

According to Hodder, the Internal Economy Commission met on Monday, July 17, 2006 and rescinded a decision of the IEC from 2000 which had the effect of barring the Auditor General from auditing the House accounts.

Nice enough, except that we ere told some time ago that this decision to let the AG back into the House was taken in April 2004. That's how the AG got back into the House and do the audits he just reported on.


There isn't a technicality here since the recent reports cover periods before, during and after the IEC decision in 2000. So if the IEC has now lifted the previous order, what did it do in April 2004 and in what way was the AG's work over the past couple of months constrained?

Hodder also indicated that after the IEC meeting, there were "consultations" with the executive - that is, the cabinet - on Tuesday and the cabinet then issued the order for the AG to start his snipe hunt. That's all well and good except that the order should have come from the House of Assembly itself. The only reason to use a cabinet order is to avoid having the House called together to pass the necessary resolutions and thereby expose all the members to media questions on their business.

So after all the double-talk and contradictions from Harvey Hodder here's a plausible explanation for the recent IEC dance that still causes problems but doesn't make the AG's new work a snipe hunt.

If there was no decision taken in 2004 by the IEC to give the AG access to the House, there might well be a legal basis for challenging the information he turned up. He's getting a mulligan to forestall a legal challenge to any prosecution based on the fruits of the poisonous tree.

That's a simple concept that holds that anything resulting from an illegal or improper search can be tossed out of court and never presented as evidence in a prosecution. It would also mean that the police can't delve into things that they would not have been aware of were it not for improper or illegal investigations in the first place. it also means that any statements provided by any of the people interviewed thus far, if not given under oath and with the right to counsel waived would be inadmissible.

One big difference in this second go 'round and in any police investigation: everyone possibly implicated will lawyer-up faster than you can say "soft money".

Now this is a legal hypothesis offered up by a non-lawyer. Take it for what it's worth. But if it is accurate, then we have yet another reason for a public inquiry.

And yet another reason for genuine openness and transparency from the people who now appear to have knowingly provided information that was less than accurate.