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.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
No, that's your interpretation, and I know it's the interpretation of the law clerks of the House. It's not an interpretation I agree with or that the courts have always agreed with.
NDP
Matthew Green NDP Hamilton Centre, ON
Then who has primacy over the House of Commons? Is it the courts and the clerk, or the members of Parliament?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It's not a question of primacy of one or the other. We have a legislative branch, an executive branch and a judiciary, and there's tension among the three all the time.
NDP
Matthew Green NDP Hamilton Centre, ON
Then within that, in their appearance before the committee, the RCMP commissioner noted about cabinet confidences that cabinet confidence is there for a reason. I think the interpretation of cabinet confidence, as we discussed earlier, sometimes differs from one person to another. You just mentioned that you think that's my interpretation, that you have a different one, and the Supreme Court says that cabinet confidentiality is protected as a matter of constitutional convention, which is what you just referenced, or the rules of behaviour established by the government institutions that are not enforced by the courts, but are considered binding by those who operate the Constitution.
The people who operate the Constitution are the members of Parliament.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
And the police, and the prosecutors, and the executive part of government. This is a principle that's binding on all branches of government.
NDP
Matthew Green NDP Hamilton Centre, ON
Do you think cabinet confidentiality should be further waived in the context of investigations conducted by the RCMP, or should this notion of client-solicitor privilege, where the government is both the client and the solicitor, provide them a shield from any kind of oversight for criminal accountability?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It's never that black or white. I think the onus should be to disclose as much as possible to formal legal processes like the police and the courts, but there may always be cases where redaction is appropriate.
We're having a discussion now about the divulgation of documents involving Chinese intelligence activities within Canada. It would be a very bad idea to simply turn over all the documentation without redaction.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
The clerk has a role in deciding what cabinet confidences are released, on a case-by-case basis.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Legal advice to the clerk.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
No, absolutely none.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
No.
NDP
Matthew Green NDP Hamilton Centre, ON
In no cases or situations does the cabinet or Prime Minister decide what is and isn't redacted?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
If you go back to a previous government, then the previous prime ministers have a role in whether to release documents of their ministry. Basically, you sequester the papers of each government when it leaves.
I went back to Prime Minister Harper a couple of times to get his consent to release documents related to the Norman affair because it had happened while he was in office, so he gave that agreement and we turned over the documents to the clerk.
NDP
Matthew Green NDP Hamilton Centre, ON
Would that also carry by the same logic that Prime Minister Trudeau could waive cabinet confidence at any time, despite recommendations by the clerk and by legal advisers?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
It's a discussion between the clerk and the Prime Minister. Ultimately, it is the clerk's job.
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
Yes.
NDP
Matthew Green NDP Hamilton Centre, ON
Is there ever a situation where staff well below the clerk can make decisions on what redactions are done?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
There would be advice from lawyers and from people like the security intelligence people as to whether redactions were appropriate or not. I always took the view to disclose as much as possible, but you wouldn't want to disclose business confidences or intelligence services or personal names and so on.
It's very similar to the process on access to information.
NDP
Matthew Green NDP Hamilton Centre, ON
In your experience, in your years, just to recap.... Forgive me for not being as familiar with this, as your LinkedIn profile might indicate, but how many years were you in government?
Jarislowsky Chair in Public Sector Management, University of Ottawa, As an Individual
I was in government for 38 years, 17 years as a deputy minister.