As he prepares himself for work, today, the Honourable Ted Hughes can be forgiven for recalling clichés about Pandora’s boxes.

Today, after all, is the day Mr. Hughes will decide whether the Prime Minister of Canada should be compelled to testify before his commission of inquiry into RCMP conduct at the 1997 Asia Pacific Economic Cooperation (APEC) conference. While the APEC commission itself has largely slipped from the front pages of the nation’s newspapers, we should not fool ourselves. What Mr. Hughes decides is of great significance. If his ruling does not go the right way, it will have a profound impact upon how future Prime Ministers – and Premiers – carry about their official duties.

What the news media want, of course, is entirely predictable: they want Prime Minister Jean Chretien on the witness stand in Vancouver. As President Bill Clinton discovered not so long ago, reporters cannot resist spectacles – and what better spectacle can there be, than watching a Prime Minister being forced to take questions from a teenaged leftist lunatic?

The protestors want this, too. The headline-hungry cabal of APEC protestors concluded, long ago, that Prime Minister Jean Chretien should be hauled before them – ideally in leg irons - to answer interrogatories about their imagined right-wing conspiracies. They will settle for nothing less. As the editorialists at the Victoria Times-Colonist so aptly put it, last year: “Nobody likes a whiner, and there is [now] a perception of the APEC demonstrators as self-indulgent wheedlers who have now found themselves a nice, comfy soap box seat on the taxpayer-funded gravy train.” Well put.

It is comforting, then, that Mr. Hughes – a former Saskatchewan judge, and the former Conflict of Interest Commissioner in British Columbia – is the person deciding whether the Prime Minister should be compelled to testify. Mr. Hughes is universally regarded as a tough but fair individual. When, for example, protest organizer Jaggi Singh last year threatened to withhold evidence unless the Prime Minister was called – so that Mr. Singh could “prove” that the Prime Minister’s Office “ordered” the Mounties to crack down on protestors – Mr. Hughes gave him an icy blast. Mr. Singh’s position displayed “colossal arrogance and disrespect for this commission,” he said. Mr. Hughes did not then seem to be inclined to permit his hearings to degenerate into a Kenneth Starr-Monica Lewinsky-style circus.

For the sake of argument, however, let us assume that Mr. Hughes decides otherwise today. Let us assume he rules that the Prime Minister may be subpoenaed: is that so very bad? In a word, yes. Here is why:

• Commissions of inquiry should not become fishing expeditions: The probe into the peacekeeping mission in Somalia demonstrated what happens when commissioners start to lose sight of their job description – delays, conflict and huge cost overruns inevitably result. The APEC Commission mandate is clear. It is to look at the “conduct of members of the RCMP” at the APEC conference in November 1997. No more, no less. To any reasonable person, the recollections of the Prime Minister are completely, totally irrelevant to such an inquiry.
  
  
• Forcing a Prime Minister to testify sets a grave precedent: The federal Evidence Act, to cite just one example, permits members of the executive branch to refuse to disclose information that may harm Canada’s national defence, diplomatic relations or intelligence matters. If , however, Mr. Hughes instructs the Prime Minister to appear – to testify about a conference that was entirely about diplomatic relations – it may seriously impair Canada’s future ability to communicate, in confidence, with other nations.
  
  
• We should learn from the mistakes of our Southern neighbours: At the end of the obscenity that was the “independent” probe of Kenneth Starr into President Clinton’s dalliances with Ms. Lewinsky, everyone – including Mr. Starr and his Republican Party – agreed that the executive privilege had been placed in peril. The privilege (first asserted in 1954 when Senator Joe McCarthy was bullying the staff of President Dwight Eisenhower) derives from the U.S. Constitution. In 1974, the U.S. Supreme Court held that the privilege was both valid and necessary, because there is – sometimes – a demonstrated need for confidential communications in government. Mr. Hughes, it is hoped, will remember this.

As a former employee of Mr. Chretien, I am entirely confident that – while on the witness stand - he would make short work of any youthful Stalinist interrogator. Nor am I the least bit concerned about his commitment to the principles at stake in the inquiry: he is, after all, the person who gave us the Charter of Rights and Freedoms.

No, what is worrisome is the principle that is at stake, here. Is it in the interest of taxpayers that the government of a future Prime Minister – whether he or she be Grit, Tory or Reform - be paralyzed by an avalanche of subpoenas, and by an inability to deal with diplomatic, military or intelligence matters?

The answer is obvious. And that is why Mr. Hughes must keep the lid on the Pandora’s Box.

[Warren Kinsella is a lawyer with the Toronto firm of McMillan Binch.]