Procedure and House Affairs Committee on March 18th, 2011

[The Chair, Conservative, Joe Preston]

We would like to get started back with our next witness, if we can have the room come to order. I'll give about 30 seconds for that to happen.

Mr. Walsh, it seems like hours since we've last seen you. It's great to have you back. Thank you very much.

I understand you have a bit of an opening statement on this study, so I'll let you go ahead, and then we'll go to rounds of questioning.

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chairman.

I have an opening presentation to make. I encourage you to stop my presentation when you've had enough or if you think members may want to ask some questions rather than listen to me any longer.

Lawyers, as you know—hopefully you don't know from direct experience—when they have clients who are faced with an action brought against them in the courts, have to advise the clients as to what the case is that might be brought against the clients for the clients to consider whether they want to go forward on a guilty plea or a not-guilty plea.

In a trial, at the end of the trial, the lawyer on one side will summarize the evidence and then make arguments from that, and the lawyer on the other side will summarize the evidence and make arguments from that. Of course, in their summaries they will summarize the evidence in a way that's most favourable to their client.

What I propose to do today is not summarize the evidence favourable to either side, but just summarize the evidence as to what I think is out there that the committee ought to consider. I would preface that first by saying that, as other witnesses have said, this is a very important matter where a member, in this case a minister, is accused of deliberately misleading the House—by “House”, I include the committee. I would only offer this comment, if I may, on your behalf, as the Law Clerk of the House: as serious as the offence is, and for good reason, the evidence ought to be weighed in a manner that's serious and balanced and is convincing at the end of the day.

The motion to the House is that the matter concerning statements by the minister be referred to this committee. It doesn't say what statements. So the first question I had to ask myself in preparing for this meeting is what statements we are talking about.

If you look to the ruling by the Speaker, it seems to me the Speaker in this case didn't come to any conclusion as to whether there had been any misleading, but he did come to the conclusion that there had been some confusion for members caused by the minister's statements or non-statements and that he thought this was a matter this committee should look into more profoundly and report to the House, hopefully with a resolution to that confusion so that in future the facts are clear.

The facts may be clear at this point, after all the testimony the committee has heard, but having clarified the facts, the committee is still arguably entitled to go back and see if there was at any point in time a misrepresentation made to the House that ought not to have been made, a misrepresentation that was deliberately made, and one on which members had to rely and govern themselves for some period of time until it was corrected.

So with that preface, let me first begin by saying it seems to me that there are two statements, for lack of a better term, that give rise to the charge of misleading the House: one is the statement made in the committee meeting of December 9, and the other is the statement in the House that this CIDA decision was the result of an examination of the merits of the application by the CIDA officials.

The statement in the House was initially made by the parliamentary secretary to the minister, not the minister. The parliamentary secretary later corrected himself. He made his initial statement on March 15, and he later corrected himself on December 13. Arguably, after December 13 there was no confusion about that aspect, as the parliamentary secretary had apologized for his error. However, between March 15 and December 13, a period of several months, the House was left to understand that the statement by the parliamentary secretary was the truth, and the question this committee might ask itself is whether the minister in that period of time could have or should have intervened at some point and made the record clear. I'm not aware of any statement made by the minister in the House or elsewhere, in the committee, doing that.

Before I go further, I should point out that I have not looked at what statements may or may not have been made elsewhere by the minister or parliamentary secretary or any other member of the government. This claim for misleading the House is based on what is said in the House or at committee. It is with respect to that record that I am making my remarks today.

On the statement in the committee, the question asked of the minister was whether she inserted the word “not” in the document. She said she did not. The question was not asked to her whether she might know how the word “not” found its way into the document. Accordingly, she did not have any testimony before the committee on that point.

The issue this committee has to address is the standard of truthfulness that's to be expected of ministers--and frankly, of any witness--when they appear before committees. Is it good enough that a witness seemingly has to wait for the right question—or from the witness's point of view, perhaps the wrong question—to be asked and then respond truthfully? When it's evident from the question or a series of questions what the interest of the committee is, should the witness volunteer information that may go beyond the terms of the question but would provide a more complete and full answer to the committee? I'm not answering that question now, but I raise it to you: that is the question the committee has to ask itself regarding that testimony.

Going back to the other issue, of whether the decision was based on the recommendation of the CIDA officials, that too is something for the committee to assess as to the gravity of that oversight. It's an offence by omission rather than commission, if you like. I have not found any statement on the record where the minister said what the parliamentary secretary earlier said. So in that sense there was no statement by the minister that could be said to cause the House to be misled.

Arguably, there was an opportunity to make a statement that would have clarified the situation earlier than December 13, 2010, when the parliamentary secretary made his apology to the House and clarified his earlier statement.

I'll leave it at that for the moment, Mr. Chairman, and take questions.

[The Chair, Conservative, Joe Preston]

Super. Thank you for doing that for us.

Mr. McKay, you have seven minutes.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair.

Thank you, Mr. Walsh, for coming in to assist us here.

One of the issues is the timeline. On December 9 I asked a question—according to Mr. Lukiwski I didn't ask the right question—and according to today's testimony the minister apparently knew 24 hours later what the answer to the question was. It has now been more than 90 days since the minister has known the answer to the famous “not” question.

In your view, does the period of time that elapsed between December 9 and March 18 contribute to contempt toward the House?

[Rob Walsh]

Forgive me if I don't answer the question in its own terms.

Whether it's contempt is for the committee to decide. But in looking to the witness's position, 24 hours later, as you say, the witness learned what she could have said, didn't say, and might have said, perhaps because she didn't know the facts at the time she was before the committee. In any event, she learned what the facts were soon after but didn't say anything for some extended period of time. You have to ask yourself what that piece of information is about, and how important it is to the larger issues before the House.

There can be oversights by witnesses all the time, as you know--myself included, God forbid. After you leave the committee you realize you didn't mention thus and so, and perhaps should have done so. You hope to heck no one noticed or that it was inconsequential. One doesn't come running back to the committee to correct it.

[John McKay, Liberal, Scarborough—Guildwood, ON]

You have to agree that this piece of information has taken a life of its own. It has been the subject of numerous editorials. It has been the subject of numerous questions. Apparently there were numerous opportunities she could have taken to clarify this item.

Doesn't that contribute to her contempt toward the House?

[Rob Walsh]

Mr. McKay, speaking now as legal counsel in the context I earlier suggested I would be doing this, I have to stay within the confines of what we're here about, which is an allegation of misleading the House. There may have been a whole host of comments about that document and the insertion of “not”, in a variety of places, particularly in the media. It's an intriguing notion and has all the elements of something one wants to sleuth through and find out how it got there, but what is it relevant to?

It seems to me that certainly where a document is signed by the parties to it, and the document is of a contractual nature, and someone afterwards changes that document in a material respect, and then takes that amended document and attempts to use it to advance some gain of a fraudulent nature, you're into a serious, serious misrepresentation.

If, however, the document was an internal document—and you've heard the testimony of the minister this morning that it was the way they did business on that occasion, and I admit it may not be a very good way of doing business, but that was the way they did business on that occasion, that it simply reflected the ultimate decision—then one might ask oneself whether it's all that critical how that “not” got into the document and whether she was or was not fully truthful on how that “not” got into the document.

[John McKay, Liberal, Scarborough—Guildwood, ON]

It does represent a document of seven million dollars over four years, and it is a rather significant document, as most people would understand seven million dollars to be. I know around here that's not even a rounding error, but nevertheless to the people involved it's quite significant. So the real question here is what message the minister was trying to convey.

It appears that the message she was trying to convey in the first instance is actually the message that the parliamentary secretary communicated—namely, that this did not meet the agency's current priorities. He was quite emphatic about it, and only after the fact, when he learned that he was wrong, did he apologize. So the parliamentary secretary to the minister found out after the fact and he at least did the honourable thing.

Similarly, the documents in the order paper questions clearly left the impression that this was a CIDA decision, not the minister's decision, and those were allowed to stand for now over a year. The effluxion of time would surely move one to believe that had we not actually brought a motion, a motion in privilege, we would still be misled as to what the import of these documents might be. Is that a fair observation?

[Rob Walsh]

It's an observation you might well make as a member of this committee, but it wouldn't be my place to make that same observation, except to bring your attention to the evidence, which includes question 106. I think you're saying the answer to that by the minister was incomplete, and it was an occasion, like other occasions you might suppose, when she could have indicated more fully that the decision was not one that included the concurrence of the CIDA officials. The question itself really doesn't go to that point, and we can only in perhaps a legalistic way say that. The question doesn't really go to whether the CIDA officials supported the funding or not. But I take your point, and that's the kind of consideration you, as a member of this committee, are going to have to weigh, along with your colleagues—the gravity to give to that.

[John McKay, Liberal, Scarborough—Guildwood, ON]

You said in 2002 that when you have a series of facts that “lead you to draw inescapably the conclusion that the member must have known”....

We have a series of facts: we have order paper questions; we have access to information; we have question period; and we have now two appearances before committee. And it's only under almost threat of torture that we actually get some response to very simple questions. Doesn't that lead one to an almost irresistible conclusion that these are constituent elements of contempt, that in fact there was an intention here to mislead the committee, intention to mislead members of the House, and that impairs their ability to function?

[Rob Walsh]

Mr. Chairman, I would agree with Mr. McKay to the effect, as I said earlier, that if you show a pattern of incomplete answers or even partially mistaken or false answers, after a while you've got to say that this is not an accident; the person must have done this by design.

In the case here, I haven't traced the question period occasions when this question or something like it may have been asked. But to the extent that there were a number of occasions when critical information was omitted, yes, that may support a pattern indicating that it was by design that the information was omitted.

That's your judgment to make as to whether you think there's a sufficient pattern here of a kind that warrants the conclusion that it was intentional.

[The Chair, Conservative, Joe Preston]

Thank you.

Go ahead, Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you.

I wish we had more time.

I do want to go back to a couple of things you said. I agree with Mr. McKay on one thing. I think the question here really is one of intent. Was there an intent to mislead the House? I think you've verified that this is the crux of the issue before us.

What we heard in testimony today was that the famous document with the word “not” inserted was an internal document rather than a parliamentary document. I categorize that as more of an inter-office memo than anything else. This document was intended to communicate, between the officials at CIDA and the minister, the minister's intention to fund or not fund Kairos.

As you've stated, it may not have been the best method by which to communicate. But when the minister told her staff to communicate back to the CIDA officials who sent in a recommendation that she did not accept their recommendation and in fact did not wish to fund Kairos, that's when the “not” was inserted, and the signature arm, after that point, went in.

There was no confusion. There was no deception intended. There was no intent to mislead CIDA officials. And that point has been verified by the president of CIDA herself, who said that this was a normal course of action and that they understood completely what the minister's intentions were when they received this document back in their possession.

Given that, Mr. Walsh, would you not agree that if there was no intent to deceive, and certainly if the recipient of the document, that being Ms. Biggs, said that she understood that the intent of the word “not” being inserted was to communicate the minister's wishes and that there was not, she felt, any intent to deceive, that would dispel the argument that there was an intention to deceive, which the opposition seems to be promoting?

[Rob Walsh]

Not quite. Showing the intent might be conclusive of the question. Not being able to show the intent may not be conclusive insofar as we are all responsible for the normal conclusions or the natural, reasonable conclusions one may draw from our actions or statements or omissions from statements. To some extent, you have to look at the whole pattern of events. If this is considered a material consideration, what this “not” in the document means--which, by the way, I think is to some degree a red herring--then you have to ask yourself if the intent is here to mislead the House in that document. You ask yourself not just if there is evidence of a direct intent but whether there is evidence of opportunities to make it clear that there wasn't and that the opportunities were not taken for that purpose.

Then after a while, as I was saying to Mr. McKay, it might be the reasonable conclusion that there was an intent here to mislead, because there were opportunities to clarify the issue and they were not taken.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I would go back again to Ms. Biggs' testimony. She said that from CIDA's perspective, there was no confusion whatsoever. They fully understood that this was a decision taken by the minister, and they supported it, as they always do.

I would also point out that the minister said on many occasions at committee on December 9 that it was her decision, her decision alone, not CIDA's and not CIDA officials. She said that it was solely her decision, which should have clarified any confusion at the time.

Although you haven't reviewed all of the transcripts, I can assure you that all of the review I have done has found that on no occasion did Minister Oda ever say the words “CIDA officials” when responding to either a verbal or a written question. She stated, and I believe quite correctly, that when the minister of CIDA makes a decision, it then becomes a CIDA decision. And she has consistently stated that the CIDA decision was to not fund Kairos.

I cannot see where there could be any intention to deceive, based on her answers to any of those questions.

[Rob Walsh]

In my view, the critical consideration here, going to your point, is not just reading the document, but asking yourself what use was made of the document.

This is not unlike the element of the Afghan detainee controversy, where one of the points of privilege was the legal opinion letter put out by the Department of Justice, which the mover of the motion argued was itself a breach of the privilege of the House. You may recall that the Speaker's ruling was that a letter of opinion is not a breach of privilege, but what use you make of that letter might be a breach of privilege.

Anybody can express an opinion. That's what lawyers do for a living. An opinion was expressed in that letter, but what use you made of that letter might then constitute an interference.

Now, you look at this document. Well, I understand the testimony that it's seen as an internal document to the agency. The CIDA officials are not complaining about being misrepresented by that document, so you ask yourself--this is the lawyer talking--who has an interest in this document? Who has an interest who might complain and say: “That misrepresents my view. That misrepresents what has been used to misrepresent my view”? Well, obviously, the officials at CIDA would be the first ones who might say that, and they aren't saying that.

Mr. Franks this morning talked about and gave great weight to the fact that the minister is responsible for falsifying the CIDA document. That was the word he used: “falsifying”. He talked about a presentation of that document in a very serious manner, a very serious representation. He talked about a presentation of the document's submission to the committee and so on. The fact as I understand it is that this document was never presented by the minister to the committee. It was never used by the minister to advance any particular point of view.

What happened, I understand--and I consulted the clerk of the foreign affairs committee this morning--is that there was a discussion in the committee about this document, at some length. They came to the end of their deliberations--they were doing a report--and somebody said, “Gee, if we're going to refer to this document, perhaps we should have it”. At that point, what was produced was the last page of the document, and the report of the committee has appended to it only the last page of that document.

So the document came into the public realm, I understand--and I stand to be corrected--through an access to information application, and as a result it has been the subject of much discussion ever since. But in fairness to the minister, it seems to me, one has to acknowledge that, to my knowledge, according to the record, she never used the document to advance some erroneous or misleading information. It simply came to the surface. It was an internal document of the government, and yes, she is embarrassed by it, and she has had to explain herself a lot ever since--much discussion about that “not”--but I don't see it as being determinative of the question of an attempt to mislead the House.

[The Chair, Conservative, Joe Preston]

Thank you.

Thank you, Mr. Lukiwski.

Monsieur Paquette, seven minutes.

[Pierre Paquette, Bloc, Joliette, QC]

I would just like to review the timeline here.

I was the House Leader of the Bloc Québécois, when this matter came to light during the winter of 2010. We asked a number of questions. The minister's version of the events, which she claims has remained unchanged, is difficult to believe.

On November 27, 2009, she rejected CIDA's recommendation and the word “not“ was inserted at her request. Whether she was the one who inserted the word, or whether someone else actually did, is not really that important here.

On November 30, 2009, KAIROS officials received a telephone call and were informed that they did not meet the funding criteria. They were not told that it was a CIDA decision, only that they would be getting a more detailed report. KAIROS never did receive that report. Over the winter of 2010, one question arose: why did KAIROS lose its funding?

At the time, the government—the parliamentary secretary as well as the minister—implied that the decision to cut the funding was made by CIDA, ostensibly because KAIROS did not meet its criteria.

You mentioned the statement made on March 15, 2010 by the parliamentary secretary and the answer to question 106 on the Order Paper of April 23, 2010. I would like to call your attention to an answer given on that very same day, that is April 23, 2010, in the House:The criteria for the funding of KAIROS is the same as the criteria for funding for anyone else applying for such funding. KAIROS did not meet the criteria. It did not get the funding. There was no surprise there.

Everyone believed that the minister was talking about CIDA's criteria. Yet, she knew full well that this was a political decision, and although I disagree with it, it is entirely legitimate nevertheless

The controversy subsequently subsided a bit and was no longer a topic of conversation. Of course, there are always new issues that can stir up some indignation on our part.

On December 9, at the same time as the document containing the infamous word “not“ obtained under the Access to Information Act was released, the minister appeared before the committee and announced that the decision to end the funding had always been hers.

The controversy was rekindled. Vague questions were asked. It wasn't until February 14 last, more than one year later, that the minister clarified the situation. Doubts had persisted for this entire period of time.

The opposition parties were not alone in questioning this version of the facts. Indeed, the following day, virtually every editorial in Canada and Quebec called for the minister's resignation.

Do you not think that the amount of time that elapsed gives us sufficient reason to find that the minister took advantage of the situation, at the very least, to suggest that the decision was CIDA's and not hers, and that CIDA's criteria, not her own criteria, factored into the decision? Do we not have sufficient reason to think that?

[Rob Walsh]

You used the word “sufficient“. You asked if the amount of time that elapsed was sufficient reason to find that the minister was in contempt. That is up to you to decide.

Are we convinced that the minister really had the opportunity to explain the situation, but chose to say nothing? Why? She appeared before the committee to provide some explanations. Were her explanations convincing, or not? That is for you to decide.

As Mr. McKay asked earlier, is there sufficient evidence here to find that Ms. Oda is guilty of misleading the House?

[Pierre Paquette, Bloc, Joliette, QC]

I would like to ask another question.

This morning, the committee heard from Mr. Franks. He stated that in reviewing Ms. Oda's case, the committee needed to take into account the fact that a precedent already existed, namely the circumstances surrounding the cancellation of the long form census. Mr. Clement too had inferred that Statistics Canada had suggested to him that the mandatory census form be eliminated. The matter even led to the resignation of the chief statistician.

In your opinion, what can the committee learn from the fact that this is not the only time a minister attempted to justify decisions made for political reasons? The Conservatives are within their right to make decisions like this, even though we may disagree with them and even though this is a minority government. However, to suggest that the recommendations originated with senior officials, when this is not the case, is another matter entirely. It was very clear in Mr. Clement's case. He stated as much on more than one occasion.

Can we take into consideration the overall context in which this situation unfolded?

[Rob Walsh]

Yes. It is up to you to decide whether these other matters are relevant to your finding. It is up to you to determine whether these other incidents, such as what happened at Statistics Canada, are merely versions of the same thing. That is up to the committee to decide.

[Pierre Paquette, Bloc, Joliette, QC]

I will let my colleague Mr. Laframboise wrap up.

[The Chair, Conservative, Joe Preston]

Monsieur Laframboise, a minute and a half.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Earlier you mentioned this morning's appearance by Professor Franks. Oddly enough, you seem ambiguous. Professor Franks seemed satisfied to point out that on the issue of contempt of Parliament, the minister had, to his knowledge, admitted to have misled the House. As lawyers would say, res ipsa loquitur: the facts speak for themselves.

In his ruling the Speaker referred to the minister's statement of February 14, 2011, in which she said: “ If some were led to conclude that my language implied that the department and I were of one mind on this application, then I apologize.“

She acknowledged that some people may have been led to believe that CIDA and her were of the same mind where this matter was concerned. She apologized because that was not the case. As far as Professor Franks was concerned, the issue was clear. He did not say that this was a case of contempt of Parliament, but rather that the minister has misled the House. Yet, you don't seem to be convinced of that. I'd like you to clarify your position for us.

[Rob Walsh]

I cannot say that here, as a law clerk and parliamentary counsel. Mr. Franks is a private citizen and a former professor who is highly respected. He is entitled to have his point of view. I, however, am restricted in that it is not my place to make decisions that are up to the committee. I believe my role is to find evidence that is relevant to the issue before the committee, and that is whether the minister misrepresented—