Declaration of Emergency Committee on Sept. 22nd, 2022

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Okay.

[Rachel Bendayan, Liberal, Outremont, QC]

If either Mr. Brock or Mr. Motz would like to clarify the motion, they are free to do so.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

You say “clarify”, but I think the motion should be amended because it clearly indicates “each redaction”—in other words, each redacted passage. So my understanding is that each redacted passage should be explained. That is what is written.

But will an amendment be made to this motion? I don't know.

Mr. Green, go ahead.

[The Joint Chair, NDP, Matthew Green]

Mr. Chair, I just want to say you're doing a great job up there. I appreciate you.

I'm going to keep going back to this notion of a duty of candour. I know that the courts have established that they have a duty of candour to the courts. I would argue that, as the grand inquisitor of the nation, they have a duty of candour to us. I think that when we were talking about demands for documents, there was a concern. In fact, if I recall the debate correctly, although it was quite some time ago, it was about who would be redacting them and under what auspices, like under what legality they were redacting this information.

I do, however, also appreciate the lack of specificity, given the volume of documents. Maybe it's within the spirit of the movers to allow this motion to be adjourned on debate, and to then return with specificity on which ones we would like to see a response on. I'm not moving this. I'm just speaking out loud.

I note the challenge that with heavily redacted documents, you don't know what you don't know. That is going to be a challenge. I share the frustration around what we received from CSIS and CBSA in this regard.

Through you, could I ask the mover of the motion that question? Would you allow me to do that?

[The Joint Co-Chair, Bloc, Rhéal Fortin]

I won't stop you from asking your question, but I reiterate that the motion is clear. It concerns all the redacted passages. If we want to clarify some of those passages, we need to amend the motion.

From memory, we discussed this before. Correct me if I'm wrong, but we raised the possibility that these redacted documents be reviewed by the law clerk, for example, someone neutral who would review the full document and clarify to the committee whether the redaction that was done was legitimate or not.

I will stop here and give the floor to Senator Carignan.

[Claude Carignan]

I think it is essential that any redaction be justified. If a decision has been made to strike out or hide information, it is because there is a reason behind it. Is it in the name of solicitor-client privilege or cabinet confidence?

Every passage where a word has been crossed out or hidden represents a decision for which we need to know the reason. When we are called upon to challenge that decision, we need to know the rules that apply. The rules for solicitor-client privilege are not the same as those for cabinet confidence, a privilege or a security matter. In order for us to deal with this information, it will be important to know the source of the denial.

In my opinion, this is a key step. The rule is publication, the exception is redaction, and the latter must be justified.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Senator Carignan.

Mr. Virani, go ahead.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I have a just few points, Mr. Fortin. Thank you.

First, I feel that the text is a little misleading. It says, “though the order was silent on authorized redactions”. The text of the order may not reference redactions, but I have extensive memory about the discussions that went into our preparation for that motion. We talked quite openly about the possibility of redactions occurring. I felt it was understood by all of the members of this committee that there would very likely be redactions based on a number of types of privilege that can be asserted. That's the first point.

The second point is that I feel that burrowing into some of these redactions has the potential to derail the work of this committee to a great extent, especially since we're trying to work on a timely basis to address what we need to do to fulfill our statutory mandate.

Based on that, my last point is that I would be in favour of voting down this motion as it's currently worded.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Virani.

Mr. Brock, the floor is yours.

[Larry Brock, Conservative, Brantford—Brant, ON]

Mr. Chair, I fail to really appreciate the concerns of my Liberal colleagues. Quite frankly, I do recall that conversation we had about potential redactions and all the grounds by which those redactions could be maintained and established.

At no point in time.... Quite frankly, we didn't think it would be necessary to specify in the form of that particular motion and the order that was drafted to compel those officials to do the obvious and give us some justification for that redaction. That happens all the time. Why it's not done here is very disturbing.

When we had the committee studying the WE scandal and all the redactions that flowed and the documentation that was produced, there was always an explanation on every page as to what the redaction pertained to.

I listened very carefully to Senator Carignan's commentary and I agree with him wholeheartedly. We also have to accept that there will be redactions when it comes to personal background information such as phone numbers, addresses and things of that nature.

To put an emphasis on my concerns about my Liberal colleagues taking the position that they are taking, if this were an ATIP scenario, every redaction would have a legal ground cited. Parliament has far more powers than the ATIP process, yet the government is treating this committee on an inferior basis to a regular citizen under the ATIP process, which I find very disturbing.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Thank you, Mr. Brock.

I put my name on the list. So I will give myself the floor, if the committee will allow it. I know that Senator Cordy also wants to speak to this.

I agree with Senator Carignan. What bothers me here is that we will never be able to know whether the redaction is justified or not if no one talks to us about it. In other words, agencies could provide us with completely redacted documents, and we won't know whether the redaction is legitimate or not.

So there needs to be a process for validating redaction. That process may consist in submitting the original and redacted documents to the law clerk or someone else that the committee trusts for that person to review the proposed redaction and give us their opinion. This is one possibility.

On the other hand, we are all bound by certain confidentiality rules as part of our duties as senators or members of Parliament. In addition, prior to serving on this committee, each of us signed a confidentiality undertaking in relation to some of the information that may be provided to us. To date, we have never invoked this confidentiality undertaking to obtain information other than what we would normally obtain. Is there not an opportunity here to do so?

As an example, if the Canada Border Services Agency decided that some of the documents needed to be redacted, couldn't we subpoena their representatives in camera to explain to us why certain information needed to be redacted? We could then decide whether or not to accept that redaction, and then intervene in the House or elsewhere as needed.

One thing is certain: we cannot receive redacted documents without justification. We are not talking about two or three words that are redacted, but entire pages. We cannot receive that and say nothing, otherwise our mandate is meaningless. We have to be given the full information or be told why the full information cannot be made public.

That's my opinion.

That said, I give the floor to Senator Cordy.

[Jane Cordy]

Thank you very much.

I totally understand that redactions are very frustrating, but I'd like to just have a vote now or adjourn this for another time, because we're not going anywhere with it right now.

[Vernon White]

It's House rules. You can adjourn debate and go to a vote if you wish.

[Jane Cordy]

You can adjourn and go to a vote? Okay. I'd like to adjourn and go to a vote on this motion.

[Rachel Bendayan, Liberal, Outremont, QC]

There's no adjourning and going to a vote. It's one or the other.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

We cannot do both. Do you want to adjourn the debate or vote?

[Jane Cordy]

Adjourn debate, I meant.

[Rachel Bendayan, Liberal, Outremont, QC]

We can.... We're able to vote.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Senator Cordy, you are proposing that we adjourn the debate on the motion, correct?

[Senator Jane Cordy]

Yes, I am.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

Do we have unanimous consent to adjourn the debate on the motion?

[Rachel Bendayan, Liberal, Outremont, QC]

No.

[The Joint Co-Chair, Bloc, Rhéal Fortin]

So we will proceed to a vote, Mr. Palmer, on the motion to adjourn the debate on motion 7.

[The Joint Clerk, Mr. Mark Palmer]

Yes. The vote will be on the motion to adjourn the debate on motion 7.

(Motion agreed to: yeas 8; nays 3)

[The Joint Co-Chair, Bloc, Rhéal Fortin]

So the debate on motion 7 is adjourned.

We are moving on to motion 8 from Mr. Motz, which reads as follows:

That the Committee, noting the undertaking of the Privy Council Office to provide to this Committee certain documents which will be provided to the Public Order Emergency Commission which are also responsive to the Committee's May 31, 2022, order, despite not doing so directly in response to the Committee's order, while also observing that relevant Cabinet minutes, among other documents, were disclosed by the government in Federal Court proceedings and have been subject to media reporting but which have not been provided to this Committee, invites the Clerk of the Privy Council to appear before the Committee to discuss these matters, among other things.

Would anyone like to comment on this motion?

Mr. Green, go ahead.