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The Abotech Affair: Another open letter to the Ethics Commissioner

23 December 2005

To whom it may concern,

It was with interest and then dismay that I read the Smith Inquiry Report (122005-08E) released by your office today.

Personally I found it difficult to believe that with documentary evidence to the contrary, you decided the David Smith had followed your recommendations in June 2003 and cut all ties with Abotech. To be "unaware" that he had signed three contracts after June 2003 beggars the imagination.

But I won't take issue with interpretation. You have decided to take a verbal denial over hard evidence. That is your prerogative.

However, it is not your prerogative to tolerate an omission or misstatement of facts in response to your inquiries, or to tolerate a conspiracy to tell a lie.

The report states the purpose of the Brazeau interview:

The purpose of the interview was to obtain information in regards to the various ties which may have existed between Mr. Smith and Mr. Brazeau.

Here is what the report describes as being the sum total of the "ties" described to your office:

During this interview, which was recorded and transcribed, Mr. Brazeau confirmed to my Office that he has known Mr. Smith for a very long time, as they grew up in the same town and were almost the same age. This corresponds to statements made by Mr. Smith in his interview with respect to his relationship with Mr. Brazeau. Mr. Brazeau also told us that he had had little contact with Mr. Smith between 1981 and 2000. During this period, any meetings were purely fortuitous.

Having established this casual and tenuous personal relationship, the report moves on to the professional relationship.

However, the testimony given to you was incomplete, and deliberately so. The report says that the testimony given by Brazeau outlining the limits of the personal relationship corresponded to Smith's testimony on the same topic, so I can only assume the David Smith was also being deliberately incomplete.

It is true that they are about the same age. It is true that they grew up in the same town.

What Brazeau and Smith neglected to tell your office is that they are also closely related by blood.

Indeed, they are cousins. Frank Brazeau's grandmother and David Smith's mother are sisters. Theirs is not an example of a remote familial relationship requiring an exploration of a family tree through several generations to establish. Their relationship is immediate and clearly known to both of them.

This fact has been established, most recently by the CBC in a special report on David Smith, which aired on CBC Radio One in two parts, December 20 and December 21. It was confirmed, after repeated questioning, by David Smith's twin brother Daniel, during an on-air interview, including the details of the genealogical relationship. However, the information has been known since October 25, published online and made known to your office by email on November 18.

Two men growing up in the same town later working together in government might be dismissed as coincidence. Two close cousins growing up in the same town then one seeking out the other for advice on how to win contracts in that cousin's government department seems worthy of closer scrutiny.

I assume that in order to avoid that scrutiny, both Brazeau and Smith decided to avoid fully disclosing their family ties to your office.

It might be that the conclusion of your report would not have changed had they been completely honest with your office.

That is no longer relevant. The fact is that two were not completely honest. That is in itself unethical behaviour. That they both told the exactly same lie suggests the possibility of collusion.

Can you forgive this lie? It is your prerogative to determine the seriousness of this omission. Your office, after some consideration, might consider this a fib, a misdemeanor in legal terms.

However, it is a basic principle in law in many jurisdictions that a conspiracy, even a conspiracy to commit a misdemeanor, is a felony. That David Smith and Frank Brazeau were both asked to describe their relationship to each other, that their evidence corresponded so closely, and that they both neglected to mention this potentially important piece of information, suggests a level of orchestration and coordination that needs to be taken seriously.

That your office declined to interview anyone else in this investigation, including Anne Ethier, David Smith's wife and current president of Abotech, with regards to her recollection of David Smith's level of involvement in the company, especially during the "coaching" phase, means an opportunity to speak to someone who might have had knowledge of the family relationship was missed.

(As an aside, I find it remarkable that the only two people interviewed for your investigation were David Smith and Frank Brazeau, the two people with the most to hide, if indeed there was anything to hide. Anne Ethier should have been interviewed. Frank Brazeau's supervisor at CAC should have been interviewed. Even David Marshall, the Deputy Minister of Public Works, could have had relevant information to provide.)

The Smith Inquiry report is fatally flawed. Besides the cursory nature of the investigation (no review of the contracts themselves even if just to determine who was signing them at Public Works, no interviews with other critical witnesses, no background work beyond the original Globe and Mail story despite the rich amount of material directly relevant to the case that became known at the time your investigation began and made available to your office), there is every reason to believe that critical information was deliberately suppressed during the witness interviews. Even more serious is that it appears that there was a conspiracy to suppress that information.

For these reasons the conclusions in your report must be dismissed. Even if David Smith's original actions with regards to Abotech were ethical, this evidence of subsequent unethical behaviour in response to your office's investigation is a separate issue. If allowed to stand without challenge and investigation, the reputation of you and your office will be tarnished, and your credibility, so key to your ability to act effectively as Ethics Commissioner, will be damaged, perhaps irreparably.

Yours truly,
Stephen Janke

Cc. Pierre Poilievre, MP Nepean-Carleton
Evan Dyer, CBC Radio One
The Speaker's Office, Ottawa

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