McMurtry’s G20 probe: “More smoke and mirrors?”

No 79 Posted by fw, October 21, 2010

Further to the previous post, G20 Summit/MPP Pupatello update: Encouraging development, in the course of our conversation with Marion Fantetti, Ms Pupatello’s Special Assistant, she pointed to the Liberal’s appointment of Roy McMurtry as a positive development in the investigation of the G20 scandal. McMurtry, a respected former attorney and Ontario chief justice, had been called upon to conduct an “independent review.” However, when asked about McMurtry’s mandate, which is, after all, the initial acid test of any government probe, Ms Fantetti was unable to be of assistance. Googling “McMurtry G20″ provided answers to the mandate question and more. Here’s a sample of news media coverage –

G20 probe is more smoke and mirrors from the Liberals by Adam Radwanski, Globe and Mail, Sept 22, 2010

Roy McMurtry

As Radwanski put it in his scathing concluding paragraph of his piece in the Globe:

Whatever the government was up to, it was just about the furthest possible thing from the mea culpa that had briefly been expected. Instead, it was gamesmanship of one form or another. As reporters tried to make sense of it, some Ontarians might have got the impression that the Liberals were taking responsibility for their lackadaisical protection of civil liberties. For now, at least, that impression – like so many others around the G20 – would be false.”

In the lead up to his skeptical conclusion, Radwanski pointed out how quickly the Liberals dashed the widespread perception that Mr McMurtry would be looking at how the government concealed its passage of Regulation 233/10 under the obscure Public Works Protection Act.

“In a mild echo of their confusion over their own law back in June, some government officials seemed to believe Mr. McMurtry would be able to cover that ground. His terms of reference focused on the pre-existing Public Works Protection Act, not the regulation passed for the G20. But the call for recommendations on “public notice requirements relating to the designation of a ‘public work’” – which is what the security zone had been branded – was thought to provide enough leeway. That was until Community Safety Minister Jim Bradley emerged from the legislature to disappoint a large and expectant pack of reporters with the news that Mr. McMurtry’s scope would be very narrow indeed. He would be mandated to offer advice on how Second World War-era legislation, meant to allow inspection of people entering government building or utilities, could usefully be updated – but not to look at the specifics of how the law was (mis)handled during the G20.

But it shouldn’t take a former chief justice to head up an investigation that will, at best, recommend updates to a piece of legislation resurrected from World War II. What gives, asks Radwanski?

“One way or another, Mr. McMurtry appears to have been used as a prop. The government seems to have wanted to give the appearance of responding to this summer’s controversy without actually doing so. The timing of the announcement might also have been intended to distract from Wednesday’s release of a critical report by the province’s Environmental Commissioner; if so, it certainly succeeded.”

Here are the inconvenient questions that McMurtry’s mandate conveniently omits:

Why hadn’t it [the Liberal government] announced a change to the law that affected access to a large chunk of Toronto? Why did it allow the police to misrepresent the rule, leading Torontonians to believe they could be arrested for coming within five metres of the G20’s security wall? And what responsibility did the government bear for the fact that at least a couple of people were arrested under a law that didn’t really exist?”

Ontario announces inquiry into G20 fence law that is totally not related to the G20. Toronto Life, Sept 22, 2010

Regarding McMurtry’s mandate, the Toronto Life story sarcastically reports:

James Bradley

“When is an inquiry into the G20 not really an inquiry into the G20? When the province announces it’s going to appoint a respected jurist to look at one of the most controversial aspects of the summit, but not the summit itself. . . . The Post is reporting that the review will not look at the effect the law had during the G20. Sure enough, the terms of reference spell out,Mr. McMurtry will not consider or comment on any litigation or legal matters before the courts.” Except, of course, they also say that the review will look at the law’s historical applications, like recent history when the province and police lied about the powers they had during World War II. They also add that the Minister of Community Safety and Correctional Services, Jim Bradley, will occasionally check in with McMurtry so he doesn’t make the government look like a bunch of clowns again [and] gets regular updates. So, we’ve got an independent review of one of the more embarrassing aspects of the G20—though there are so many to choose from—except that it won’t look at the G20 itself, because the election is just one year away [and] there are still cases before the courts. That’s what we call progress!”

G20 law review too narrow say critics. CBC News, Sept 22, 2010

One of the critics was prominent lawyer, Clayton Ruby, who had this to say about McMurtry’s review and the “secret law” that violated the constitution:

“It may not prove much use to people in Ontario. . . . How did this [the secret law] happen? Who was so stupid in the attorney general’s department not to point this out? Why did the premier not know this? And why did the police not make it public that there was this law?”

A news release on the government’s website disclosed McMurtry’s mandate:

‘The review will look at the historical context of the Act, how it has been used in the past, the definition of a “public work,” the requirements for public notice, and the scope of authority given to police.”

Roy McMurtry to lead review of secret G20 law by Johnna Ruocco, National Post, Sept 22, 2010

In a desperate attempt to justify McMurtry’s review, Jim Bradley, Ontario’s new Minister of Community Safety and Correctional Services, said:

“This law has been on the books since 1939, when we were probably worried about Nazi saboteurs.” It deserves a review. It might still make sense [to have such a law updated]. Mr McMurtry will be exploring similar laws in other provinces . . . The review is only focusing on the law itself as there are already a number of reviews being conducted by other parties. [I] look forward with anticipation to the report.”

Former chief justice Roy McMurtry to lead review of G20 secret law Keith Leslie, Canadian Press

Although very late out of the gate with his criticism, even Ontario Progressive Conservative Leader Tim Hudak couldn’t pass up this opportunity to take a shot at McGuinty over the McMurtry appointment — apparently satisfied that there was little risk of implicating Prime Minister Harper:

“Heads should roll. . . . All justice McMurtry needs to do is talk to the premier himself (to ask) who put this through cabinet, who made the decision to lie to the public, and who’s going to pay the price for that.”

Notwithstanding the tardiness of his response, Hudak’s questions are to the point.

In the light of these news stories, it will be very interesting to see how Minister Pupatello deals with our questions. We anticipate that she may refuse to comment on any litigation or legal matters before the courts or under review.

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