Evidence of meeting #108 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 documents.
A recording is available from Parliament.
Bloc
René Villemure Bloc Trois-Rivières, QC
Since you were the Clerk of the Privy Council, and given the position you now hold, I would like you to confirm something for me: do you think a situation can be both unethical and legal?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
The Parliament of Canada created several pieces of legislation. As I said, some legislation governs ethics and conflicts of interest. For instance, there’s the famous Public Servants Disclosure Protection Act and the Lobbying Act, to name a few. Other legislation provides for offences arising from unethical behaviour, but those offences do not necessarily fall under criminal law.
Bloc
René Villemure Bloc Trois-Rivières, QC
I see.
It is therefore possible to breach the code of ethics without necessarily violating the Criminal Code, right?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
That was the Commissioner’s conclusion.
Bloc
René Villemure Bloc Trois-Rivières, QC
That’s perfect. Thank you very much.
Tell me about cabinet confidence. Is it well defined? The RCMP Commissioner told us it depended somewhat on the person interpreting cabinet confidence. We asked Mr. Pincince the same question and, in some cases, there was more access to information, whereas in others there was less access. There does not seem to be a solid, bulletproof definition. Could you tell us a bit more about that, please?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I did not understand your question. What subject are you asking about?
Bloc
René Villemure Bloc Trois-Rivières, QC
Could you describe the parameters of cabinet confidence to us, because during their testimony, the RCMP Commissioner and Mr. Pincince told us that it was not always a yes or no question. In other words, some areas were unclear. In your opinion, where does cabinet confidence start, and where does it end?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
You’re asking me a broad question on a complex subject.
In general, it is very important for the governance of this country, meaning the federal government’s model and that of the provinces, to ensure the confidentiality of discussions, of conversations, in the cabinet meeting room, whether they occur in person or in hybrid format. Several decisions by the Supreme Court of Canada recognize this basic principle.
The role of the Clerk of the Privy Council is long-standing. It has existed for 800 years. The exact role is to be the guardian of discussions, documents and processes of the Council of Ministers. He or she is the Secretary to the Cabinet and the Clerk of the Privy Council. One of the Clerk’s responsibilities, among several, is to keep documents in-house and protect the confidentiality of Cabinet conversations and, correspondingly, the Privy Council’s confidence. The Clerk is the guardian of the Cabinet’s documents. I exercised some discretion in granting access to documents or discussions to the courts and the Commissioner, among others.
Bloc
René Villemure Bloc Trois-Rivières, QC
During your mandate as Clerk, was cabinet confidence very well defined, or did it tend to be assessed on a case-by-case basis?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Are you referring to disclosure and redaction of documents?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It was assessed case by case.
Bloc
René Villemure Bloc Trois-Rivières, QC
It was therefore possible to disclose information more broadly on certain subjects or, on the contrary, to decide that relevant information fell directly under cabinet confidence, right?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Yes. In R. v. Norman, I gave the judge full access to the documents, because a court and a judge oversaw the process.
In other cases, it is possible to disclose part of the documents by redacting certain passages, meaning by not disclosing names or certain elements…
Bloc
René Villemure Bloc Trois-Rivières, QC
Excuse me for interrupting you, but my speaking time is limited.
Why, in this case, was no information disclosed?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I am not the one who made that decision. It was my successor, after I left.
Conservative
The Chair Conservative John Brassard
Thank you, Mr. Villemure.
Mr. Green, you have six minutes. Go ahead, please.
Matthew Green NDP Hamilton Centre, ON
Thank you very much.
On the topic of cabinet confidence, you'd mentioned that it's a long-standing convention. Is that correct in how you framed it?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It's about eight centuries' worth, yes.
NDP
Matthew Green NDP Hamilton Centre, ON
How does a convention compare with the laws and principles of parliamentary privilege as it relates to our ability to send for documents and evidence?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
There's a role for the clerk, which is defined in the Canada Evidence Act, and there are often disputes between Parliament and the executive about the release of documents.
You may recall issues around Afghan detainees years ago, and so on, so it's always a case by case. It's not an absolute principle. You do not have the right to ask for my medical records or my tax returns and so on.
NDP
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Yes.
NDP
Matthew Green NDP Hamilton Centre, ON
—as I'm to understand, and forgive me for having notes to better refresh my memory or cite the actual laws, but when we were constituted we carried with us the Westminster system from the U.K. and the supremacy of parliamentary privilege supersedes conventions. Conventions are agreements among parliamentarians, but parliamentary privilege is actually supreme when it comes to the conventions of our abilities in our Standing Orders as it relates to standing committees to send for documents, evidence and witnesses.