If It Walks Like a Duck

Trying to uncover what actually transpired between two suspect individuals is rarely easy and the outcome is even more rarely tidy. Counsel trying to unravel questionable dealings don't count on finding the great smoking gun. It does happen, but rarely. Instead, they usually have to be content with uncovering a fabric of little lies, half truths and inconsistencies. It's the way they point when they're all put together that settles the issue.

How does one go about that? There are techniques that can be pretty effective. One of these is to steer clear of the principals at the outset. Leave them be while you pursue paper trails and get the evidence of knowledgeable third parties. There'll usually be some credible individuals out on the periphery of any suspect deal - lawyers, bankers, managers, clerical staff - the sort of people involved in any legitimate deal. Individually they may not have the big picture but it can be astonishing how much they know about key parts of the scheme.

What you get, or hope to get, from this approach of working from the periphery toward the centre are building blocks of evidence. They may seem almost useless until you find something else with which they fit and, gradually, you may get to something that becomes recongizable. One makes sense of something else or corroborates part of the emerging picture.

Slowly what develops will become more focused and directed. That's when you can tuck your documents, facts and analyses into your pocket and start talking to the principals.

Let's say somebody claims to have been involved in a particular venture or project. If they're telling the truth there ought to be documentary evidence to corroborate their claims. What if there's not? Then it depends whether the venture looks suspicious. If it looks like a duck and waddles like a duck and quacks like a duck, the court is entitled to suspect that it is indeed a duck. Having come to that suspicion, the court is then properly entitled to call upon the people who claim it isn't and never was a duck to come up with corroboration.

Enter Koop v. Smith, a 1915 decision of the Supreme Court of Canada. The case involved a fraudulent conveyance but is useful for its wider discussion of badges of fraud and shifting onus of proof:

"Suspicious circumstances coupled with the close relationship between the transferee and the debtor make a sufficient prima facie case of fraud. From that point, the burden of producing credible evidence substantiating the transaction is upon those who set it up. If substantial valuable consideration is truly given for a transfer of lands, there must be better evidence of it than the recitals in the deed and the land transfer tax affidavit."

I think that this principle should apply to the Mulroney-Schreiber dealings. There was a close relationship going back to Mulroney's leadership bid. There are plenty of suspicious circumstances to be found in the record of both men. Mulroney's story has changed at least twice and his current position directly contradicts his sworn testimony many years ago. Schreiber too has changed his story when that has suited him.

I think there is an abundance of suspicious circumstances in this scandal to place a clear onus on Brian Mulroney to come up with "credible evidence substantiating the transaction" as he now alleges it. At the very least, Brian Mulroney has to come up with $300,000 worth of corroboration and that's a lot of paper and a lot of witnesses. And if he somehow manages to do just that? Well then he needs to explain why he said something entirely different at the outset.