Finance Committee on March 4th, 2021

Liberal

The Chair Liberal Wayne Easter

We're all okay, and there's Mr. Poilievre.

Pierre, do you want to do a test?

I was worried about Mr. Poilievre. I thought that since he left us he was running short on words or something, which would be unusual.

Conservative

Pierre Poilievre Conservative Carleton, ON

I want to save them up for later. I don't want to run out.

The Clerk of the Committee Mr. Alexandre Roger

We seem to be having issues with Mr. McLeod's audio, so I will ask the IT ambassadors to contact his office, and maybe we could just get going.

Liberal

The Chair Liberal Wayne Easter

All right.

With that, as I said earlier, we are meeting on the WE issue and the study related to that, and we've invited the law clerk and parliamentary counsel to come before committee.

I'd like to welcome our witnesses now. We have Philippe Dufresne, law clerk and parliamentary counsel; and Marie-Sophie Gauthier, legal counsel, Office of the Law Clerk and Parliamentary Counsel. Welcome to you both.

I believe, Mr. Dufresne, you have opening remarks. The floor is yours. Welcome.

Philippe Dufresne Law Clerk and Parliamentary Counsel, House of Commons

Thank you, Mr. Chair.

I hope everyone can hear me well.

Thank you, Mr. Chair, members of the committee, for your invitation to appear today following the motions that were adopted by this committee on July 7 and November 19, 2020, respectively, ordering the production of documents related to the WE Charity and the social enterprise “Me to We”.

As the Law Clerk and Parliamentary Counsel for the House of Commons, I am pleased to be here today to address any questions that the committee may have with respect to these motions. I hope that my answers will assist the committee in its study.

Before turning to the committee's motions, I want to take a few moments to highlight the committee’s powers to send for documents. The House has certain powers that are essential to its work and part of its collective privileges. As the “grand inquest of the nation”, the House has the right to institute and conduct inquiries. This right is part of the House’s privileges, immunities and powers, which are rooted in the preamble and section 18 of the Constitution Act, 1867, and section 4 of the Parliament of Canada Act. Indeed, these rights and this fundamental role have been recognized by courts and include the constitutional power to send for persons, documents and records.

As Speaker Milliken stated in his landmark ruling of April 27, 2010, regarding the production of documents to the Special Committee on the Canadian Mission in Afghanistan, the rights to order the production of documents are “fundamental to [Parliament’s] proper functioning” and are “as old as Parliament itself”.

Speaker Milliken went on to say the following:

The Standing Orders do not delimit the power to order the production of papers and records. The result is a broad, absolute power that on the surface appears to be without restriction. There is no limit on the type of papers likely to be requested, the only prerequisite is that the papers exist—in hard copy or electronic format—and that they are located in Canada....

No statute or practice diminishes the fullness of the power rooted in the House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records.

Parliament has the right to send for any and all documents that it believes are necessary for its information. The only limitations are that the document or record must exist, and it must be located in Canada.

The House and its committees’ powers to order the production of records constitute a constitutional parliamentary privilege that supersedes statutory law, which is why committees are not constrained by the statutory obligations contained in legislation like the Access to Information Act or the Privacy Act.

When committees ask for documents, they are entitled to receive them, subject only to the exceptions or limitations to disclosure explicitly provided for by the committee itself.

With that said, in exercising this power, I always recommend that committees should strive to balance their roles as the “grand inquest of the nation” against the legitimate public policy considerations that may justify limiting the disclosure of the requested information in a public setting—be it Cabinet confidence, national security or other claims of confidentiality.

When faced with a confidentiality claim, a committee has a number of options. It can decide not to insist on the production of the documents. It can decide to put in measures that would safeguard the confidential nature of certain information, or it can simply maintain its original request for the information.

Some of the measures that a committee could take to ensure that information is kept confidential while it is being consulted include reviewing the information in camera, having my office review and/or redact documents, as appropriate, to ensure that a claim for—

Liberal

Sean Fraser Liberal Central Nova, NS

I have a point of order, Mr. Chair.

I apologize, Mr. Clerk, but I've just received a note saying that staff members may have been kicked off the line and may be unable to hear what is going on.

Mr. Clerk, are you aware of any kind of technical error? Can you assess whether or not there's an issue with the telephone line from where you are?

The Clerk

We don't seem to have any technical issues at the moment. I'll look into it.

Liberal

The Chair Liberal Wayne Easter

Thank you, Sean and Mr. Clerk.

Mr. Dufresne.

Law Clerk and Parliamentary Counsel, House of Commons

Thank you.

Some of these options include having my office review and/or redact documents, as appropriate, to ensure that a claim for confidentiality is justified; asking the party providing the documents to redact certain types of information; requesting limited and numbered paper copies; or arranging for the disposal or destruction of copies after the committee meeting.

It is for the House and its committees to make this determination and to set the parameters on the disclosure of documents being produced. If a committee's order is not complied with, the committee may report the refusal to the House. Ultimately, the House has the final say and may order the production of any documents or impose sanctions.

In this instance, the committee adopted a motion on July 7, 2020, ordering that the government produce documents related to WE Charity and Me to We. The motion expressly provided that matters of cabinet confidence and national security be excluded from the request. It also required 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 my office.

The government provided the requested documents to the committee, and they were in turn given to my office so that we could make the necessary redactions. After reviewing and redacting the documents in accordance with this committee’s order, I reported to the committee by way of letter on August 18, 2020.

In my report, I noted that the documents produced by the government had already been redacted and that certain grounds were not contemplated by the committee’s order. My office had not been given the opportunity to see the unredacted documents and could therefore not confirm whether those redactions were consistent with the committee’s order.

I concluded that, in the circumstances, it was for this committee to determine whether it was satisfied with the documents as redacted by the departments. As I stated previously, when faced with a claim of confidentiality, it is up to the committee to determine whether to accept the ground that is being put forward.

On November 19, 2020, this committee adopted another motion, which ordered that the government provide to me “all documents as originally requested” in the July 7 motion, “including all documents the government provided...in August, without any redaction, omission or exclusion except as was justified originally in sections and subsections 69(1) through 69(3)(b)(ii) of the Access to Information Act”—namely, cabinet confidences. The motion also provided that I would use the information to “determine the government's compliance or non-compliance” with the July 7 motion.

On November 24, 2020, my office received the documents from the government that were provided in response to the July 7 motion, but this time without redactions, omissions or exclusions except for matters of cabinet confidence or lack of relevance. On December 14 the government provided my office with pages that were missing from the French package.

The documents provided in response to this committee's motions of July 7 and November 19 contained redactions for matters of cabinet confidences. I do not take issue with these redactions, as cabinet confidences were expressly excluded from both motions.

Based on our review of the documents provided to my office in November and December of 2020, I can confirm that some of the government's redactions are based on grounds that were not contemplated by the committee's order of July 7 but that are, rather, rooted in the Access to Information Act. Specifically, those grounds are as follows: personal information, namely that while the July 7 motion contemplated that personal information would be redacted, the committee entrusted these redactions to my office and not the government; third party information; information on the vulnerability of the government's computer or communication systems or methods employed to protect those systems; solicitor-client privilege; and to protect accounts of consultations or deliberations in which directors, officers or employees of a government institution, a minister of the Crown, or the staff of a minister participated.

I can confirm that these redactions relate to information that would be exempt from disclosure under the Access to Information Act. However, as mentioned in my report to this committee of last August, the House and its committees are not subject to these statutory restrictions.

Should this committee agree to allow the redaction of documents on the grounds I’ve just mentioned, I can confirm that the manner in which the grounds were interpreted by the government would be appropriate.

Ultimately, it is up to this committee to determine whether it is satisfied with the documents provided in response to its order.

With that, I would be pleased to answer any questions.

Liberal

The Chair Liberal Wayne Easter

Thank you, Mr. Dufresne.

We will go to questions, starting with the six-minute round. The lineup is Mr. Poilievre, Mr. Fragiskatos, Mr. Ste-Marie and Mr. Julian.

The floor is yours, Pierre.

Conservative

Pierre Poilievre Conservative Carleton, ON

Thank you, Chair.

Thank you, Clerk, for your broad context. Now we'll get down to some binary yes-or-no questions.

Did the government provide this committee with all the content the committee requested in its original July 7 motion?

Law Clerk and Parliamentary Counsel, House of Commons

The information that was provided excluded cabinet confidence information and included information that was found not to be relevant, so it went beyond the scope of the initial motion.

Conservative

Pierre Poilievre Conservative Carleton, ON

Sorry. I think you might have misunderstood the question. I'm not asking about what you received. I'm asking about what the committee has thus far received unredacted.

Has the committee received all the information it requested in its July 7 motion?

Law Clerk and Parliamentary Counsel, House of Commons

It has received what it asked for, with the exception of the redactions that I have highlighted in those categories under the access to information legislation, which the committee did not include as valid grounds in its motion.

Conservative

Pierre Poilievre Conservative Carleton, ON

Do the Access to Information Act exemptions and exclusions apply to requests by Parliament for papers and records?

Law Clerk and Parliamentary Counsel, House of Commons

They do not apply to those requests unless the committee decides to include those grounds in its motion.

Conservative

Pierre Poilievre Conservative Carleton, ON

Did the July 7 motion allow those grounds for exclusion or redaction?

Law Clerk and Parliamentary Counsel, House of Commons

It included the ground of cabinet confidence, but the ones I listed—third party information, information on the vulnerability of government computers, solicitor-client privilege, and consultations—were not included. Personal information was included, but it was meant for my office to redact and not the government.

Conservative

Pierre Poilievre Conservative Carleton, ON

Again, did the government provide the committee with all the information the committee requested in its July 7 motion?

Law Clerk and Parliamentary Counsel, House of Commons

No, because it invoked those grounds that the committee did not allow.

Conservative

Pierre Poilievre Conservative Carleton, ON

And those grounds are not legally legitimate.

The next question is this. The government has excluded documents on the grounds of cabinet confidence. Can you confirm, yes or no, whether the government accurately applied the grounds of cabinet confidence?

Law Clerk and Parliamentary Counsel, House of Commons