Finance Committee on Oct. 8th, 2020

[Sean Fraser, Liberal, Central Nova, NS]

Thank you, Mr. Chair.

I'll do my best to speak to the subamendment that's on the table, which really deals with the issue of the extent to which the full disclosure that the government provided should be part of the evidentiary record going forward. I would suggest that if we're going to proceed with any of the motions on the floor, whether we're dealing with the main motion, the amendment or the subamendment, the very least the professional public service is owed is the opportunity to explain why they've made the redactions they've made, before this committee embarks on a quest to find that their redaction of those documents constitutes a violation of the privileges held by members of this committee.

To maybe lead with the point, effectively what's going on here right now with respect to the subamendment is that those who have indicated their opposition to it have more or less said they want to ensure that the evidentiary record does not include the government's explanation as to its redactions. They instead want to find that those redactions constitute privilege and make sure we bury the evidence so we can't hear the government on why they may have done what they've done in terms of the document disclosure.

I don't think that's the right approach.

Ms. Dzerowicz actually quoted part of Kevin Lamoureux's remarks in the House when this made it to the floor previously. With respect, I believe Mr. Julian also made the point that there's obviously a breach of privilege. The Speaker of the House of Commons found that he could not find a prima facie case of privilege. I would therefore dispute the notion that it constituted one, notwithstanding his misplaced confidence.

In his remarks in the chamber, Mr. Lamoureux said the following:

The member argues that the government did not respect the finance committee's motion, while at the same time acknowledges that the government provided the requested documents to the clerk of the committee on August 8, 2020. It was the opposition parties who wanted the law clerk to review these documents for the purposes of additional redactions. Liberal members on the committee agreed to the motion. I want to be clear: The government respected the finance committee's motion and provided the documents on time. The government also provided exactly the information that the committee requested in its motion. The only things excluded were matters of cabinet confidence and national security, which the committee spelled out in the motion.

In preparing the documents in response to the committee motion, public servants respected their statutory obligations under law. The government provided the documents, which were 5,600 pages, on the date requested by the committee. Due to the time needed for the law clerk to do his work, Parliament was prorogued before they were properly given to the committee. As a result, not only did the finance committee cease to exist with prorogation, but the committee did not fully have these documents. It is therefore difficult for the opposition to argue that the government did not comply with the committee's motion, when they were not in a position to take such a determination since they did not have the formal law clerk-approved documents.

Then the portion that Ms. Dzerowicz read out—and this is important, given the nature of the allegation of a violation of privilege—was this:

...I want to make it clear that when the finance committee restarts on October 8 or 9, if it readopts the motion and is not satisfied with the way the government has provided documents to the committee, the government is prepared to work in good faith with the committee to address any concerns that it may have.

There has been an offer made to work with members of the committee. I would suggest that this is a far cry from a violation of privilege.

What I want to draw your attention to, though—and this is really the crux of the subamendment—is whether you're going to include all of the evidence, including specifically the government's explanation as to why certain redactions have been made. I don't understand how someone could oppose the inclusion of the explanation by the government of the very thing that has been alleged to constitute a violation of privilege.

If I take a look at some of the letters that the public servants prepared in response to the committee's motion, we can start with the letter from the Clerk of the Privy Council, which is specifically the kind of document that I now understand the opposition does not want to form part of the evidentiary record going forward.

In a letter on August 7 to David Gagnon, who was the clerk of the Standing Committee on Finance at the time, the Clerk of the Privy Council wrote:

Dear Mr. Gagnon,

I am pleased to provide records from the Privy Council Office (PCO) that were requested under the motion adopted by the Standing Committee on Finance (“the committee”) on July 7, 2020 in relation to the committee's study on the WE Charity and the Canada Student Service Grant....

I am also pleased to provide information related to the undertakings that I agreed to at my appearance before the committee on July 21, 2020 which were as follows:

1. A detailed timeline of events.

Attached at Annex 2 is a timeline describing PCO's knowledge of and involvement with the file.

2. A full list of organizations that were consulted on program development.

On Friday July 24, 2020, the Department of Employment and Social Development (ESDC) provided the Committee with a list of the national coalition member organizations of the Canada Service Corps (CSC) who ESDC spoke with in March and April of 2020.

I am told that on April 9, 2020, Department of Finance officials were provided with a report on stakeholder outreach regarding support for students during the COVID-19 context....

3. PCO media monitoring from the dates when Margaret and Alexandre Trudeau had speaking engagements for WE Charity.

I can confirm that PCO Media Monitoring does not have any media content of the public appearances for either Margaret Trudeau or Alexandre Trudeau.

The PCO media centre monitors coverage of the Government of Canada priorities, programs and services and does not monitor media coverage related to the relatives of the Prime Minister or their public appearances.

4. All communications between PMO staff and PCO staff; the Finance Minister's Office and PCO; and the Finance Minister's Office and the Finance Department relating to WE charity contribution agreement and the CSSG

These communications are included in Annex 1 and in the package from the Department of Finance.

5. Names of participants....

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I have a point of order.

Are we now discussing the documents? I'm confused. If we can just vote on the amendment, we could dispense with this.

[The Chair, Liberal, Wayne Easter]

I think Mr. Fraser is making the point through the letter of why that is important evidence as related to Mr. Gerretsen's subamendment, so it is relevant.

Mr. Fraser, go ahead.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you, Mr. Chair.

That is precisely why I'm going through some of this evidence. I am trying my best to highlight the context the government did provide, which the opposition now seems intent to exclude from consideration as we move forward.

I forget precisely where I was. I believe I was just picking up on number five:

5. Names of participants, notes, and recording of mid-April meetings between Rachel Wernick, Michelle Kovacevic (and whether PCO personnel were aware of the meeting taking place and participated)

I am told that a teleconference between officials with the Department of Finance and Employment and Social Development Canada (ESDC) was held on the evening of April 18, 2020.

He provides a list of the officials who took part. I'll spare you from listing all of their names. He mentions near the end that:

No officials from PCO participated in the call or were aware of the meeting.

There is no recording of the meeting.

Meeting notes that were taken by Rachel Wernick in an e-mail thread about setting up the call are attached at Annex 4.

6. Due diligence analysis of any financial scrutiny undertaken with regard to the WE charity during this process.

Attached at Annex 5, you will find the detailed explanation prepared by ESDC of the controls embedded in the contribution agreement to ensure stewardship and appropriate use of funds, as well as a brief overview of the typical process used to evaluate projects and recipients.

Further information relating to due diligence that was done by officials in relation to the Canada Student Service Grant is provided in Annex 1 and in the packages that other relevant departments are providing to this committee.

7. The full text of contribution agreement

This document was provided to the Committee by ESDC on Friday July 24, 2020.

The letter goes on. The final page of this particular letter says:

As I noted when I appeared at committee on July 21, 2020, my intent has been to be as expansive as possible in relation to the information that I provide.

The committee's motion stipulates that Cabinet confidences and national security information are to be excluded from the package. No information is being withheld on the grounds of national security, since the information does not so pertain. With respect to Cabinet confidences, you will note that considerable information on the Canada Student Service Grant that were Cabinet confidences, is being provided to the Committee. This is in keeping with the public disclosures of information on this matter made by members of the Queen's Privy Council for Canada. A principled approach was adopted to this information to ensure a non-selective application of the protection afforded by Cabinet confidentiality. As a result, considerable information on the Canada Student Service Grant that would otherwise constitute Cabinet confidences is being released. Information not related to the Canada Student Service Grant that constitute cabinet confidences is withheld and identified as not relevant to the request.

In this package, I have also chosen to disclose certain personal information contained in the Privy Council records relating to individuals working in ministers' offices as well as personal information of individuals who work for WE. I have decided to disclose this information because in my view the public interest and disclosure clearly outweighs any invasion of privacy. I have notified the Privacy Commissioner of my intention to disclose this personal information, as I am required to do under the Privacy Act.

I have decided to protect the phone number and email addresses of WE employees other than Craig and Mark Kielburger. In addition, there are a few references to the family members of a public servant and I have chosen to protect that information. In my opinion, the public interest in disclosing this type of personal information does not clearly outweigh the invasion of privacy.

Similarly, because I believe that it is in the public interest to do so, I am prepared to issue a limited waiver of solicitor client privilege as it relates to the information that is being provided by departments in response to this motion and my undertakings.

Lastly, I wish to draw the committee's attention to a Note to File, prepared by Christiane Fox, the Deputy Minister of Intergovernmental Affairs at the Privy Council Office. In that Note to File, Ms. Fox provides a clarification regarding references in two email exchanges (Annex 6).

I trust that the Committee will find the above explanations helpful in its consideration of the enclosed materials.

Sincerely,

Ian Shugart

Clerk of the Privy Council Office

The final portion of the letter that I read said, “I trust that the Committee will find the above explanations helpful in its consideration of the enclosed materials.” I am sure Mr. Shugart will be interested to hear that the committee not only is seemingly not finding them helpful, on the opposition side, but is actively trying to exclude that explanation from the evidentiary record going forward.

Perhaps the transmittal letters that provide context for these documents that are now the subject of the motion are the most important documents among those that were disclosed.

As you can see from the Clerk of the Privy Council's letter, more information was actually provided than was requested by the committee. Matters that constitute cabinet confidence were provided, as well as other information. In fact, Mr. Chair, I would suggest that the transmittal letters weren't necessarily requested by the committee, but certainly they have become relevant because they provide context to the rest of the documents that we're discussing, and we shouldn't be trying to hide the government's public explanation of the redactions that, in fact, took place.

The government, frankly, went above and beyond what was required in responding to what the committee asked for. It's not just Mr. Shugart who had a letter that provides a similar kind of context. In fact, the different departments have done something very similar.

If we actually look at the letter from the deputy minister of finance, for which I don't have the date before me—I believe it was also on the same day—I will point out the importance of this particular letter.

He says, “Dear Mr. Gagnon”—again, sent to the clerk—

[Peter Fragiskatos, Liberal, London North Centre, ON]

I have a point of order, Mr. Chair.

I'm not one to interrupt, but I don't see Mr. Poilievre on screen again. He hasn't been on screen for a while. Is he all right? Is everything okay? Is something wrong?

[The Chair, Liberal, Wayne Easter]

I don't believe that is a point of order.

We'll go back to you, Mr. Fraser.

[Sean Fraser, Liberal, Central Nova, NS]

Sure. I'm back to the deputy minister of finance's transmittal letter, which is being sought to be excluded from the evidentiary record going forward. The deputy minister wrote to Mr. Gagnon, who was then the clerk of the Standing Committee on Finance:

Dear Mr. Gagnon:

On behalf of the Department of Finance, I am transmitting the attached documents to you in response to the motion adopted by the House of Commons Standing Committee on Finance on July 7, 2020....

He copied the text of the motion before the committee in that letter:

That, pursuant to Standing Order 108(1)(a), the Committee order that any contracts concluded with We Charity and Me to We, all briefing notes—

[The Chair, Liberal, Wayne Easter]

Mr. Fraser, I hate to interrupt you, but the translators are having a little difficulty with the speed you are going at, so if you could just slow down a smidgen....

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

I think we need to start over, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

No, just slow down a smidgen, and we'll be all right.

[Sean Fraser, Liberal, Central Nova, NS]

If we wanted to give them a real challenge, I would do my best to do this in French and see if the translators can make me sound sensible. I think it will take me a few more years of practice.

Thank you, Mr. Chair, and to our translators. I'll do my best to speak at a pace that is perhaps easier to translate.

Picking up from the motion, I'll carry on from roughly where I thought I was:

...from senior officials prepared for or sent to any Minister regarding the design and creation of the Canada Student Service Grant, as well as any written correspondence and records of other correspondence with We Charity and Me to We from March 2020 be provided to the Committee no later than August 8, 2020; that matters of Cabinet confidence and national security be excluded from the request; and that any redactions necessary, including to protect the privacy of Canadian citizens and permanent residents whose names and personal information may be included in the documents, as well as public servants who have been providing assistance on this matter, be made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.

We're going back to the deputy minister's text in his letter rather than the quote of the motion now. It reads:

Documents are also enclosed as part of this package related to the undertakings of the Clerk of the Privy Council and Secretary to Cabinet, Mr. Ian Shugart, further to his testimony to the Committee on July 21, 2020.

The Committee’s motion stipulates that Cabinet confidences and national security information are to be excluded from the package. No information is being withheld on the grounds of national security....

The same was true with Mr. Shugart's letter.

I will continue:

...since the information does not so pertain. With respect to Cabinet confidences, you will note that considerable information on the Canada Student Service Grant contained in Cabinet confidences is being provided to the Committee. This is in keeping with the public disclosures of information on this matter made by members of the Queen’s Privy Council for Canada. A principled approach was taken with respect to this information to ensure a non-selective application of the protection afforded by Cabinet confidentiality. As a result, considerable information on the Canada Student Service Grant that would otherwise be protected as Cabinet confidence is being released. Information not related to the Canada Student Service Grant that is contained in Cabinet confidences is withheld and identified as not relevant to the request.

With respect to personal information, the department is obliged to protect such information under the Privacy Act unless the individuals to whom it relates consent to its disclosure, or disclosure is otherwise authorized in certain specified circumstances or the public interest in disclosure clearly outweighs any resulting invasion of privacy.

It comes back to the point I made at the outset of this meeting, that there is, in fact, a natural tension that exists where you have the committee demanding one thing and the public service being subjected to legislation, including the Privacy Act, where things are not as clear as we might like them to be.

In any event, the letter continues:

Reasonable efforts were made by the department to obtain consent. Where consent was not given, the department found that the public interest in sharing the information with the Committee outweighed any invasion of the individual's privacy. As such, disclosure is being made pursuant to subparagraph 8(2)(m)(i) of the Privacy Act. As required by that Act, the Privacy Commissioner was informed of our decision. In very limited cases, personal information was redacted from these records as consent was not obtained from the individuals concerned nor was the department able to conclude that the public interest in disclosure clearly outweighed the invasion of the individuals' privacy. The type of personal information that remains protected consists of the identity of unrelated third parties where their opinion or view relates to an unrelated matter to this inquiry, as well as personal e-mail addresses and phone numbers.

As I referred to earlier in the meeting as well:

With respect to pages 190 and 194-213, further to consultation with the originating stakeholder, authorization to disclose this information was not given as it constitutes personal information as defined under the Privacy Act. Furthermore, this information is considered proprietary to the third party. The contents of this information is not relevant to the funding agreement or the Student Grant Program therefore, it has been severed in its entirety.

That would explain certain redactions made at those page numbers.

For clarity, note that there were a series of e-mails between Finance officials and staff in the Minister of Finance's Office regarding next steps. Of note, an email from the Minister's Office to Michelle Kovacevic on April 18 lists a series of items for the department to follow-up on as well as some items “WE ” will address. In this instance, “WE” is a typographical error and refers to the Minister's Office, not WE Charity. Also of note, the Annex 4 dated April 19 contains an error that was corrected verbally in an April 21 briefing with the Minister of Finance. While page 6 of the note references a cost estimate of $0.8 billion for the proposal plus potential administration costs, pages 7, 8, and 9 recommend setting aside up to $1 billion ($900 million for the initiative and an additional $100 million for implementation and associated costs). The correct recommendation ($900 million) is reflected in the April 21 version of the note, also enclosed in the package. Finally, following the April 21 briefing, a draft Ministerial Decision Page (enclosed as the first page of the April 21, 2020 version of the note) was prepared and routed to the Finance Minister's Office for review and approval by the Minister of Finance. This Ministerial Decision Page was not formally approved by the Minister of Finance. A formal decision was later made by the Prime Minister and is reflected in the package. Yours sincerely, Paul Rochon, Deputy Minister of the Department of Finance.

Again, we're seeing in these letters that members of the committee are seeking to have excluded from consideration important context that actually puts into context the very specific reasons redactions would have been made. We're seeing an example of openness in divulging more information, in fact, than the committee requested when you look specifically to those items that would ordinarily be subject to cabinet confidences.

Mr. Chair, it's not just one or two departments. Several of them have included these kinds of letters.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

Yes, go ahead, Ms. Jansen.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I'm just concerned that the reading into the record of the documents... Although I love Mr. Fraser's dulcet tones, and it's lovely to hear him read, if you look in House of Commons Procedure and Practice:

The Chair can curtail prolonged debate by limiting Members' speeches to points which have not already been made.... The freedom of debate enjoyed by Members does not extend to the repetition of arguments that have already been heard.

In the context of the legislative process, this...restriction applies to the Members' remarks only within the same stage of debate on a bill. Arguments advanced at one stage may [also] be legitimately be represented at another.

Finally, the rule against repetition has been used by Speakers in various other ways to assist the House in making efficient use of its time. Speakers have ruled against the tedious reading of letters even when they were used in support of an argument;

As I said, at the rate we're going I'm afraid Mr. Fraser is going to end up reading all 5,000 pages from the documents into the record. I wonder whether we could just go to a vote.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Mr. Chair, on that point of order—

[The Chair, Liberal, Wayne Easter]

Yes, go ahead.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

—what Mr. Fraser has been reading is not repetitious. He is reading in the important parts of those letters and I think it's important for that to be on the record. If Ms. Jansen's point is that it's repetitious, it isn't.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

I think my point is that we are now reading the documents into the record. We are just saying, let's vote, let's move on, let's get it over and done with. That's what we would love, and to get back to work.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

I think the point is that Mr. Fraser is putting it on the record so that we have it in the committee blues, so that it's on the record there.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

On the same point of order?

[Peter Fragiskatos, Liberal, London North Centre, ON]

I was going to say that it's perfectly fine for Ms. Jansen to interject, but I don't see the relevance here. I don't think that Mr. Fraser is repeating, he is making a point. Now, he is using a number of examples—

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

On this point of order I wonder if the chair could just make a ruling.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I was in the middle of a point of order.

[Tamara Jansen, Conservative, Cloverdale—Langley City, BC]

And so was I. I'm not sure who sets the precedence.