Evidence of meeting #105 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was investigation.
A recording is available from Parliament.
Commr Michael Duheme
Mr. Chair, other than the report that was released under an access to information request, no documents come to mind.
Again, your question has more to do with ethics in relation to the government and the Prime Minister. If that’s the case, it’s not something I’m going to comment on.
Commr Michael Duheme
As I mentioned earlier, it’s important for us to have the public’s trust in order to complete an investigation. If you look at the SNC-Lavalin file on its own, without considering its political aspect, and review the work of the team led by Mr. Pincince, you will see that the outcome of the charges speaks volumes about our members’ professionalism in this area.
Bloc
René Villemure Bloc Trois-Rivières, QC
All right.
Earlier, you mentioned intimidation of a justice officer. Can you tell us a little more about that?
Commr Michael Duheme
It was at the beginning of the investigation, which is when we were gathering the available information. We were looking at two potential charges under the Criminal Code, obstruction and intimidation of a participant, an officer of the court.
Bloc
René Villemure Bloc Trois-Rivières, QC
I see.
With respect to the intimidation charge, there was no cause to pursue the investigation.
Is that correct?
Commr Michael Duheme
As with any charge that falls under the Criminal Code, there are always elements that must be met.
Commr Michael Duheme
In both cases, we didn’t meet the necessary criteria to go down that road.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Villemure.
Thank you, Mr. Duheme.
Mr. Green, you have six minutes. Go ahead, please.
NDP
Matthew Green NDP Hamilton Centre, ON
Thank you very much.
I just want to get a better understanding. I heard in your testimony today that you're approaching this using a phased approach. I think I had heard that there's a difference between an assessment and an investigation. Is that correct? Can you just explain the difference between an assessment and an investigation?
S/Sgt Frédéric Pincince
I can, absolutely, Mr. Chair.
When the matter first came to light from the media articles and the testimonies before the committees, we looked into this, and, of course, we followed all of this information to try to determine whether a criminal offence had taken place. Of course, we followed the testimony of the former attorney general, the Honourable Jody Wilson-Raybould, and we looked at the information that came from that.
Of course, as you well know from the testimony at this point, the question was posed about the criminal element in this whole situation, and of course we all know the answer that was provided at that time.
Of course now we're still reviewing it and assessing further information to try again to determine whether a criminal offence has taken place—hence the phased approach. We assess the information, and then we—
NDP
Matthew Green NDP Hamilton Centre, ON
Through your testimony, we've determined that you can't make that assessment because foundational information hasn't been made available to you.
In February 2019, the government issued Order in Council 2019-0105, which waved, in part, cabinet confidence and solicitor-client privilege in order to allow for then minister Wilson-Raybould to testify at the justice committee. Did you request an expansion of the OIC to allow you greater access to personal testimony and documentation?
NDP
Matthew Green NDP Hamilton Centre, ON
One of the frustrations I have—and I know the Honourable Jody Wilson-Raybould also suggested this—is that in her role she was both the client and the solicitor. In fact, that is one of the challenges we have—a government that consistently claims both client and solicitor privilege on all matters. It claims cabinet confidence on all matters.
That is my opinion, by the way. I'm not putting that onto you.
When dealing with a scenario in which the institution under investigation is both the client and the solicitor, by virtue of its nature, how do you navigate getting any kind of information from it?
Commr Michael Duheme
Those are the parameters we deal with. The team itself had requested additional information and it was refused. As I said, those are the parameters we operate in. I could say there's something similar when we navigate in the national security space with information that we can use and can't use.
NDP
Matthew Green NDP Hamilton Centre, ON
Is it still your assertion, in terms of applying for a court search warrant for the Trudeau cabinet documents and records of communication, that you didn't have sufficient evidence to even begin that?
Commr Michael Duheme
We didn't have sufficient information to even entertain to go to a production order or even a search warrant.
NDP
Matthew Green NDP Hamilton Centre, ON
Then why did you wait almost two years to end your examination of the situation without having the ability to do a full investigation?
Commr Michael Duheme
There are a couple of things there.
Sensitive and international investigations wrapped everything up in the spring of 2021. There was a change of management at several levels. That's on us. We looked into it and corrected that. There are probably 10 months there and it could have been done in a shorter time. It's just the change of management and the reporting that made it so that we informed Ms. Wilson-Raybould in January 2023 and subsequently Mr. Scheer by way of a letter.
NDP
Commr Michael Duheme
I was deputy commissioner of federal policing. There would be a program manager reporting to me, and then the team would be reporting into three different levels before it would get to me.
NDP
Matthew Green NDP Hamilton Centre, ON
Okay.
Would you have been involved in making the delay decision?
Commr Michael Duheme
It's not a delay decision. The change of resources within the organization made it so that when it got to me, I presented it to the commissioner and then forwarded it.