Information & Ethics Committee on May 27th, 2013

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

I apologize. It was indeed Mr. Myles.

[Brian Myles]

Could you repeat the question, please?

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Could you tell the committee how other public broadcasters could benefit, directly or indirectly, from public funding?

[Brian Myles]

England, Australia and Ireland have, if I am not mistaken, created a system according to which journalistic material is completely excluded from disclosure. This has the merit of being clear. Our main argument is that at this time, the system is not broken.

If it ain't broke, don't fix it.

The decision of the Federal Court of Appeal gave the Information Commissioner a certain right of oversight. This allows her to determine whether CBC/Radio-Canada is entitled to protect material, and whether that material is really journalistic. We are satisfied with that test and the current process.

The bill as it stands runs the risk of doing far more harm than good. We agree that CBC/Radio-Canada be subject to the Access to Information Act, and that a minimum of information should be accessible, but we must make sure that the fundamental principles of freedom of the press, the protection of sources and of journalistic material, are protected. This is at the heart of our concerns.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your questions and answers.

Ms. Davidson, you have seven minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you.

Thanks very much, to each of you, for being here with us this afternoon.

When it comes to the information on section 68.1, certainly this is something this committee has been looking at for quite some time. I think you're probably all well aware that we did an extensive study on that and recommended that section be amended in order to comply with the Federal Court of Appeal's decisions on the matter. I'm quite sure you would have followed that. Now we're looking at Bill C-461 and discussing the same issue with section 68.1.

Madame Bertrand, you talked about your concerns with the bill, that as it's currently drafted it would have some unintended consequences. You were afraid, in your words, that it may undermine CBC/Radio-Canada's “ability to do its job as mandated by Parliament”. I would like you to talk a little bit about that. As well, you talked about the bill removing current protections for journalism, and the Federal Court of Appeal making section 68.1 crystal clear and how that should continue.

We've heard from the mover of the bill that he feels his bill absolutely upholds the Federal Court of Appeal's decision on section 68.1. I'd like to know why you feel it doesn't, if in fact that's what you do feel.

Also, when we heard from the commissioner the last time, she told us that since 2007 they've looked at close to 1,200 cases in relation to CBC and they have about 200 remaining. Out of all those cases, no case has dealt with journalistic sources, and she thinks that's an important fact to know when we consider possible amendments. Can you also talk about the fact that out of all of those cases she has not dealt with any dealing with journalistic sources?

There are three or four different things there that I'd like you to talk about, please.

[Maryse Bertrand]

Sure.

The first is the broader question of why we are concerned about the bill. Perhaps I can summarize it in four or five different points. The addition of the test that there should be a threat to our independence is something that is unprecedented in terms of the countries or jurisdictions that we've looked at: Ireland, the United Kingdom, Australia. Moreover, as you've heard from Mr. Carty, the concept of independence is misplaced in the context of access to information. It's a concept that is very important under our Broadcasting Act and our relationship with the government.

But when the time comes to deal with the programming, journalistic, and creative material that third parties are at liberty to request and that we have to provide, or not provide, depending on whether we are successful in demonstrating that this test is passed or not, it doesn't become very helpful in terms of our ability to do our job, in terms of our ability to keep that kind of material from going into the hands of individuals or companies who have, perhaps, an interest in making sure that this material doesn't get aired.

So the test itself I think is flawed. The absence of precedent causes us some concern, and the absence of jurisprudence is a guarantee that, unlike the current situation where we've had other court cases that have decided quite clearly what the Information Commissioner can and cannot see, this particular amendment almost guarantees us a number of different trips to the courthouse in order to clarify how far this concept of independence actually goes in protecting our ability to do our journalistic work.

In terms of the bill and whether it actually does what the court of appeal decided, I'm not actually sure how to answer that because the court of appeal essentially said very clearly that the commissioner, herself, had the ability to see all of the information, even though it was covered by the journalistic, programming, or creative label, except for sources. The court of appeal was extremely clear on that because, quite naturally, the court of appeal concluded that in order to decide whether something is journalistic, the commissioner does not need to know the name of the source. Just the fact that you know there is a source is enough to conclude that it's journalistic, and under the current system, once you conclude that something is journalistic, it's off limits. It doesn't have to be disclosed.

Much like the Supreme Court judges themselves in the famous Ma Chouette case, who still to this day, to my knowledge, don't know what the name of Ma Chouette is, they figured quite properly that the commissioner did not need to know the name of the source in order to adjudicate as to whether something was covered by the journalistic label or not. So that is very clear.

We have declared ourselves to be satisfied with that. The commissioner has declared herself to be satisfied with that. The government, in its own submission to this committee, declared itself to be satisfied with that. So as far as we're concerned, that particular case is closed.

This particular amendment doesn't seem to shed any further light on this. As a matter of fact, I would submit that because it sends us back to this whole notion of having to show a prejudice to our independence, we are going to be arguing over the sources as well as over all of the other types of journalistic material in our future court cases. To me, it's both a step back in terms of where the court of appeal decision had put us, and it's also a huge level of uncertainty that gets introduced into the process.

I think the last question that you had was on the sources. It's fair to say, to my knowledge, that we haven't had any direct access requests for our sources. In terms of the actual journalistic material that gets protected under the current system, it's actually a pretty small portion of our overall complaints.

I have some statistics here. We have received a little over 1,700 requests since 2007. Of those requests, there were approximately 252 instances where the provision of section 68.1 was used to withhold records in their entirety, on the basis that they were either programming, journalistic, or creative material. So we're talking about a fairly.... It's not insubstantial, but it's by no means the lion's share of the requests we get. The lion's share of the requests we get do get released.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your reply.

Unfortunately this seven-minute question and answer period is now over.

Mr. Andrews, you have seven minutes to ask your questions.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Mr. Chair.

Now that I have the floor, I'd like to move the following motion:

That the Committee hold hearings on the conduct of public office holders in relation to the handling of the repayment of Senate expenses by Senator Mike Duffy and the conduct of officials in the Prime Minister's Office in this process, and that the witness list include but not be limited to: Nigel Wright; Benjamin Perrin; Right Honourable Stephen Harper, Prime Minister; Ray Novak;

And that, in the context of this study, the Committee table a report in the House asking that the House send a message to the Senate requesting the appearance before the Committee of the following senators: Senator Mike Duffy; Senator David Tkachuk; Senator Marjory LeBreton.

The reason I move this motion is that it is critically important that the committee be immediately seized with this issue. I'm also forced to move this motion now because Conservatives will move that this meeting go behind closed doors to deal with my motion, as they do over and over again, hiding behind secret meetings to prevent Canadians from seeing how Conservative MPs carry out the orders of the PMO to stifle all dissent.

The conduct of public office holders in relation to the handling of the repayment of Senate expenses by Senator Mike Duffy and the conduct of officials in the Prime Minister's Office in this process goes to the heart of the trust Canadians have in their democratic institutions. This is a very serious situation that has the potential to undermine this confidence. The issues raised are very troubling questions that have yet to be answered and merit the immediate action of this ethics committee.

We're talking about the most senior official in the Government of Canada, the chief of staff to the Prime Minister, providing a substantial cash gift of $90,000 to a sitting parliamentarian. This raises a whole host of other issues, in terms of whether this arrangement was fully compliant with the Conflict of Interest Act, the Parliament of Canada Act, the Rules of the Senate, and the Criminal Code. There are so many unanswered questions, and it's up to the ethics committee to get the answers for Canadians that they deserve.

There are 10 key questions that must be answered.

On Monday, May 20, the PMO told CTV News that they had forwarded a copy of an agreement between Senator Mike Duffy and Nigel Wright to Ethics Commissioner Dawson. Then on Tuesday, the Conservatives said this document couldn't be released because no such document existed. An e-mail, which does exist, describes the secret agreement. The e-mail, dated February 20, is currently in the possession of the Prime Minister's Office.

Will the government commit to releasing this and other e-mails, documents—electronic or otherwise—that relate to this secret deal between the PMO, Senator Duffy, and Nigel Wright so they can be reviewed by all Canadians?

Two former chiefs of staff to Conservative prime ministers have said there is no way that Stephen Harper, as Prime Minister, could not have known about this deal. How could Mr. Harper continue to say he had the utmost confidence in Mr. Wright one day, and nearly five days later say he's allegedly been kept in the dark about this serious undertaking?

Media reports indicate that Stephen Harper's former legal adviser negotiated an arrangement between Senator Duffy and Nigel Wright. That lawyer says he did not participate in this decision to write a $90,000 cheque, but has not denied drafting an agreement. Who drafted the agreement, and why?

The Senate committee's report on Senator Duffy was whitewashed. Who ordered the members of the committee to whitewash the Duffy report, and why did the majority of senators on the committee agree to this cover-up and cooperate?

Senator Duffy told the Prime Minister's Office he would repay his expenses as long as they went easy on him in exchange for his silence. What else did the PMO expect in exchange for that $90,000 cashed cheque and a whitewashed Senate report?

Conservative Senator David Tkachuk tipped off Senator Duffy that he had billed inappropriate expenses. Was Senator Tkachuk or any other Conservative senator ordered by the PMO to give Senator Duffy the heads-up as part of this deal to go easy on him?

Once Senator Duffy repaid the $90,000, he immediately stopped cooperating with the Deloitte investigators who were auditing him. Why? Was he ordered to quit cooperating on the advice of Nigel Wright in the PMO? Why is the Conservative leader in the Senate refusing to allow committee hearings into the whole affair to be held in a public, open, and transparent manner?

Why did Stephen Harper continue to have confidence in these senators who whitewashed a report and who are now being asked to review it for a second time?

The audit of Pamela Wallin's expenses is yet to be made public. Had the Duffy-Wright deal not come to light, would she have received similar treatment?

Despite being required to disclose a gift of over $500 to the Senate ethics commissioner within 30 days, Senator Duffy did not disclose a $90,000 gift from Nigel Wright. Why? There can be no more important issue for the House of Commons to ensure the integrity of our parliamentary institutions than this one. This is the reason this committee must look into this very serious issue and must get to the bottom of this, so that Canadians can have trust in their institutions.

This weekend on returning to my constituency, I heard over and over again: what went on? Who knew what, and who knew what, when? It's time for this government to come before this committee and discuss this important issue. This is a government that rode into government on a white horse of accountability and they should come to terms with this motion.

[The Chair, NDP, Pierre-Luc Dusseault]

I apologize, but I have to interrupt you.

[Scott Andrews, Liberal, Avalon, NL]

Now, I notice my time is up because the bells are ringing, Mr. Chair. However, as the Conservative government has moved sitting hours to 12 p.m., maybe the Conservatives wouldn't mind if we continue with this motion for the next 25 minutes or so. The House is only a two-minute walk down the way and the government has extended the sitting hours. They want to come here to work until 12 o'clock, so maybe they would like to proceed with this motion for the next 25 minutes.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Andrews.

Since the bells have begun to ring, I must take this opportunity to thank our witnesses. The hour we had to spend with you is now over.

I thank your for your testimony and your thoughts in the context of our study of Bill C-461.

Since the bells are ringing, I must suspend the meeting, unless I have unanimous consent to continue at this time.

[Scott Andrews, Liberal, Avalon, NL]

They don't want to work.

[The Chair, NDP, Pierre-Luc Dusseault]

Do I have unanimous consent?

Since there is no unanimous consent, we are going to suspend our proceedings for a few minutes and come back afterwards. Mr. Andrews, you will then have the floor.

We will resume our meeting after the votes.

[The Chair, NDP, Pierre-Luc Dusseault]

We will now continue our work. I must ask the cameramen to leave the room so that we may hold the second hour of our meeting. The meeting was interrupted by the votes.

So, let us get back to where we were. Mr. Andrews still has the floor, unless he has finished, in which case I will give the floor the the other speakers who wish to intervene on the motion which was tabled earlier.

I yield the floor to Mr. Andrews so that he may conclude his presentation.

[Scott Andrews, Liberal, Avalon, NL]

Thank you very much, Mr. Chair.

I was getting to the end of my comments regarding my motion that this committee look into the Nigel Wright-Mike Duffy-PMO $90,000 cheque.

In the House of Commons today, the Minister of Canadian Heritage kept repeating that Mr. Wright acted alone. But if you look at Mr. Wright's statements, not once did he say he acted alone or that he didn't inform his boss of what he had done. So there are other actors in this particular case, and we need to get to the bottom of this. I have a lot of respect for the Conservative members over the years who fought for more accountability and more transparency in this place, and I'm hoping that they would support this motion to get to the bottom of this particular affair.

Thank you, Mr. Chair.

[The Chair, NDP, Pierre-Luc Dusseault]

We will continue our debate on the motion.

Mr. Warkentin, you have the floor.

[Chris Warkentin, Conservative, Peace River, AB]

It's unfortunate, Mr. Chair, that my colleague has undertaken to bring this forward now, simply because we do have important witnesses we should be hearing from. I do apologize on behalf of this side of the table for dismissing our previous witnesses much earlier. Obviously, they have important subject material that didn't get covered because of the choice of Mr. Andrews not to wait until committee business later on in the meeting.

Having said that, this is before committee now, and we'll have to undertake to review this.

You do know, Mr. Chair, that the Ethics Commissioner is currently reviewing the circumstances and the submission that has been brought forward. We also know that the Senate ethics commissioner is reviewing this. We also know that the Prime Minister has answered questions with regard to this and said that he knew nothing of it. Mr. Wright has also been clear—counter to what Mr. Andrews said—that he acted alone and he takes full responsibility for that. I would challenge Mr. Andrews to actually read some of the documentation that has circulated. If he even read local media or the media that's available, he'd know that.

We know that there is clarity that needs to be brought forward. We would look to the Liberals...it's an interesting and very partisan motion that he's brought forward. Obviously, it doesn't include Liberal Senator Mac Harb. We also think these allegations that are being brought forward are very similar to a case that we had in the House of Commons, which involved a former Liberal Attorney General, Wayne Easter. It involved a former Minister of the Crown, Judy Sgro, and it also involved a former Liberal member of Parliament, John Cannis.

We're wondering if Mr. Andrews might have an opportunity to share with us as to whether or not the fraudulent claims, of over $170,000, of these three individuals has been paid back to the Canadian taxpayer? We'd like to know that. We also want to know if that has all been cleared up, how it was cleared up, and how it differs from this case.

Mr. Chair, I would ask that we move in camera because I think the witness list has to be reviewed, and I think this is something that can be done by the committee as we move into committee business, if that's in fact what we're going to do. So I move that we move to committee business in camera.

[The Chair, NDP, Pierre-Luc Dusseault]

The motion has just been presented. It is not debatable. The committee has to sit in camera.

Since a recorded division has been called for, I am going to let the clerk count the votes.

(Motion agreed to: yeas 6; nays 4)

[The Chair, NDP, Pierre-Luc Dusseault]

Since the motion has been passed, we are going to interrupt the meeting for a few minutes and sit in camera.

[Proceedings continue in camera]