Information & Ethics Committee on May 6th, 2010

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

You are asking the witness to just take your word for it when he has a written document from the office in question--

[The Chair, Liberal, Paul Szabo]

Okay. Order.

Order. Mr. Poilievre--

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

--instructing to the contrary and it is not your role--

[The Chair, Liberal, Paul Szabo]

Mr. Poilievre, please. Order. Order.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

--to impose rules and interpretations--

[The Chair, Liberal, Paul Szabo]

Just turn his mike off.

Mr. Poilievre, order. I've already ruled that the opinion from the law clerk with regard to the authority of this committee to proceed supersedes the other order. It does, in my opinion, and that's my ruling, and we are going to proceed now with Mr. Togneri.

Mr. Togneri, you told me you had--

[James Bezan, Conservative, Selkirk—Interlake, MB]

Point of order, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Point of order, Mr. Bezan.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Since we are going to proceed with hearing from the witness, I wanted to draw to your attention the rules governing committees, in chapter 20, at page 1,068: “Particular attention is paid to the questioning of public servants”.

As we know, Mr. Togneri is a public servant with the Department of Public Works and Government Services. It states:

The obligation of a witness to answer all questions put by the committee must be balanced against the role that public servants play in providing confidential advice to their Ministers. The role of the public servant has traditionally been viewed in relation to the implementation and administration of government policy, rather than the determination of what that policy should be. Consequently, public servants have been excused from commenting on policy decisions made by government. In addition, committees ordinarily accept the reasons that a public servant gives for declining to answer a specific question or series of questions which involve the giving of a legal opinion, which may be perceived as a conflict with the witness' responsibility to the Minister, which are outside of their own area of responsibility, or which might affect business transactions.

Carrying on, on page 1,069, it states:

Witnesses appearing before committees enjoy the same freedom of speech and protection--

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Can you slow down for translation?

[Wayne Easter, Liberal, Malpeque, PE]

Yes. Please slow down.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Okay. It states:

Witnesses appearing before committees enjoy the same freedom of speech and protection from arrest and molestation as do Members of Parliament. At the committee's discretion, witnesses may be allowed to testify in camera when dealing with confidential matters of state or sensitive commercial or personal information. Under special circumstances, witnesses have been permitted to appear anonymously or under a pseudonym.

So I would suggest that since we are dealing with sensitive information here involving an investigation by the Information Commissioner, and based upon the practices of the House, we are directed by O'Brien-Bosc and by the Standing Orders, that we should take into consideration that if we're going to hear information that Mr. Togneri is going to present today--and he has been advised, as Mr. Poilievre has already said, by the Assistant Information Commissioner--that this should be done in camera.

[The Chair, Liberal, Paul Szabo]

The order of today is the Easter motion, which says that the committee “study regarding allegations of systemic political interference by Ministers' offices to block, delay, or obstruct the release of information to the public regarding the operations of government departments and that the committee call” witnesses, one of which is Mr. Togneri.

It is my ruling, Mr. Bezan, that this is not a matter of sensitive, secretive information. This is, in fact, a study of a committee seeking to get the facts as to what the operations are as they relate to the matter of access to information requests. This is not a specific allegation against anyone. It is simply a study of this committee.

Accordingly, I will rule that we are going to proceed with the witness.

Mr. Togneri, I would just indicate to you that refusal to answer a question is not an option. However, should you believe that there is a substantive reason why you cannot, I would request that you give that reason to the chair, and I'll make a ruling. Okay?

Let's proceed. Thank you.

[Wayne Easter, Liberal, Malpeque, PE]

On a point of order--

[The Chair, Liberal, Paul Szabo]

Is it necessary?

[Wayne Easter, Liberal, Malpeque, PE]

Yes, I do want to... I'm suggesting--

[The Chair, Liberal, Paul Szabo]

All right. Mr. Easter, on a point of order, are you saying...?

[Wayne Easter, Liberal, Malpeque, PE]

My point of order is that the witness be sworn.

[The Chair, Liberal, Paul Szabo]

Okay.

Would the clerk please swear in the witness?

[Sébastien Togneri, Former Parliamentary Affairs Director, Department of Public Works and Government Services, As an Individual]

I, Sébastien Togneri, do solemnly, sincerely, and truthfully affirm and declare the taking of any oath is according to my religious belief unlawful. I do also solemnly, sincerely, and truly affirm and declare that the evidence I shall give on this examination shall be the truth, the whole truth, and nothing but the truth.

[The Chair, Liberal, Paul Szabo]

Mr. Togneri, please proceed with your opening statement. Thank you.

[Sébastien Togneri]

Mr. Chair, thank you for allowing me to make these opening remarks.

First, allow me to state my complete respect for Parliament and its committees. Prior to joining a minister's office, I was the lobby assistant and worked closely with all parties with respect to the running of the House of Commons. In that role, I learned a lot about parliamentary procedure and developed a deep appreciation for this institution and those who serve it. I fully respect the powers of the committees to examine all matters that fall under their mandates and the motions they adopt to study those matters.

If you will allow me, I will take a moment to expose the chronology of the events that led me to appear before you today.

The Information Commissioner of Canada, who is an officer of Parliament, is currently conducting an investigation into a complaint pursuant to the Access to Information Act against the head of Public Works and Government Services Canada.

As part of that investigation, I testified at the Office of the Information Commissioner of Canada on March 23, 2010. During that examination, I received the following confidentiality order pursuant to sections 34, 35, 36 and 64 of the Access to Information Act.

IN RE a complaint under the Access to Information Act [...] against the head of Public Works and Government Services Canada;

AND IN RE an investigation by the Information Commissioner into this complaint, carried out in private and ex parte, in the absence of any person, including the head of the government institution, the Attorney General of Canada and the complainant under the Act.

Pursuant to sections 34, 35, 36 and 64 of the Access to Information Act and by the powers vested in her of a superior court of record, the Assistant Information Commissioner orders as follows:

Mr. Sébastien Togneri shall not communicate either the questions put to him, or his answers to those questions, or the exhibits used during his questioning under oath by the lawyer representing the Office of the Information Commissioner, on March 23, 2010, in any way or to any person, until such time as the investigation by the Office of the Information Commissioner has been completed, with the exception of his lawyer, Jean-François Lecours.

It is signed by Andrea G. Neill, Assistant Commissioner, Complaints Resolution and Compliance.

With your permission, Mr. Chair, I would like to submit the order.

On Thursday, April 1, about a week after I received the order from the Information Commissioner that I just read and tabled, your committee, the Standing Committee on Access to Information, Privacy and Ethics, adopted the following motion:

That the committee conduct a study regarding allegations of systematic political interference by Ministers' offices to block, delay or obstruct the release of information to the public regarding the operations of government departments and that the committee call before it...

Then it lists all the names, including mine: Sébastien Togneri, former parliamentary affairs director, Public Works Canada.

When I received this motion asking me to appear before you, I asked myself the following question: does this committee's motion go against the order I received from the Information Commissioner, who herself is an officer of Parliament, and if so, should I decline the request to appear?

I have to admit that I didn't intuitively have an answer to this question, not being a lawyer myself. Because of my respect for this institution, I decided to agree to this request. That's why, on Friday, April 9, I sent an e-mail to the clerk of this committee, agreeing to come before you on April 15.

I have to admit to you that immediately after having agreed to your request, I started having doubts. I wondered if I had acted appropriately in accepting the request. While I was reflecting on this, the clerk answered by e-mail, indicated that the committee couldn't hear me on April 15, and suggested another date in May.

Before accepting this new date, I decided to consult my lawyer, who reviewed the order from the Information Commissioner and your motion requesting that I appear. He advised me that I should decline your request, as it goes against an order from an officer of Parliament conducting an investigation. A letter to that effect from my lawyer was sent to the clerk of this committee on Wednesday of last week, April 28.

Last Tuesday, May 4, I received a summons signed by you, Mr. Chair, indicating that I was required to appear here today. The summons indicated, and I quote: “Failure to appear may lead to proceedings against you for contempt of Parliament”.

If I may, Mr. Chair, for the benefit of the committee, I will reread this paragraph of your summons in French: “Failure to appear may lead to proceedings against you for contempt of Parliament.”

Not wanting to be in contempt of Parliament, Mr. Chair, I agreed to come before you today.

That said, you and this committee must understand that I am bound by the order from the Information Commissioner that I tabled and read today. I apologize in advance to this committee if I am forced to refer to that order instead of answering in detail the questions that this committee will pose to me today.

The Information Commissioner of Canada was very clear when she wrote that I could not discuss the investigation “in any way or to any person, until such time as the investigation by the Office of the Information Commissioner has been completed”.

Let me read that in English, Mr. Chair. The Information Commissioner clearly instructed me to not disclose anything regarding the investigation, and I quote, “in any manner to anyone until the Information Commissioner's investigation is complete...”.

There, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Togneri.

As I had indicated to the committee at the last meeting, and again today, the opinion of the law clerk of Parliament, which, incidentally, mirrors the decision of the Speaker of the House with regard to the Afghan detainee documents, reaffirms the full authority of Parliament to call for persons, papers, or records, and that that authority of Parliament and of the House of Commons has been delegated to all standing committees, including this one.

We have the full authority. That is the opinion of the clerk. Also, as I had indicated to the committee, I have spoken directly to the Information Commissioner. Your words about any matter on anything is not exactly what it says here. It says with regard to the questions or the answers that you gave.

We don't know what those questions or answers are. What we do know is that the proceeding will take months, maybe years, before it's finished, and it would be unreasonable to deal with that. So I've made a ruling on that, and I thank you for your input, but we're going to proceed. As I had indicated, I encourage you to answer the questions.

Mr. Easter, please, for seven minutes.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair--

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Chair, I have a point of order.