Evidence of meeting #4 for Finance in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.
A video is available from Parliament.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
It is not a contravention of parliamentary procedure, Mr. Chair, for a member to waver slightly off a point if they're going to go back and make that point with examples or however they might do it. Mr. Longfield was illustrating a personal example that was proving his argument.
Liberal
The Chair Liberal Wayne Easter
I think you've made your point, Mr. Fragiskatos. That's what I indicated to Mr. Longfield. As long as there was an example related to making his point....
Ms. Vecchio.
Conservative
Karen Vecchio Conservative Elgin—Middlesex—London, ON
I appreciate the debate brought forward by Mr. Fragiskatos, but I also look at the time. I think if it's really relevant, then it should not take four or five minutes to get to a relevant story and then try to make that.... Maybe we have to look at the longevity of the story before we bring it back. I'd prefer to go maybe a couple of inches, but not a full mile.
Thank you.
Liberal
The Chair Liberal Wayne Easter
Thank you, Ms. Vecchio. I believe Mr. Longfield has heard your point.
Mr. Longfield, you have the floor.
Liberal
Lloyd Longfield Liberal Guelph, ON
I appreciate both comments. I also appreciate the chance to get a sip of my hot water and lemon. The points of order give me a break, and I appreciate that, but I wasn't doing it to have a break.
What I'm really showing, getting back to the documents that we're talking about, is that as elected officials, we have a role to play. Sometimes that role needs to be protected by confidence. As the professional, non-partisan public service, they have their role to play in providing us documents that will also protect Canadians and protect the confidences they have within their office. People share information that isn't always something that should be put out in the public domain—mobile cellphone numbers, as an example.
In terms of the sworn duty to protect our national security and the privacy of cabinet confidences, the point I was making when I was interrupted by the points of order, was that we all have things we have to shoulder as our own responsibilities as leaders. They provided the documents to the committee, but the documents aren't being reviewed and the witnesses aren't coming forward to say why they're redacted. I have an issue with that. That's what my presentation tonight is about. It's about the issue that the committee really hasn't picked up the information it was given and had a fulsome discussion with the people responsible for the redactions.
I won't repeat all the matters that relate to the Canada student service grant and its creation, but really, at the end of the day, we have students who aren't getting served because of what is going on in this room. Even if we could find a way to bridge these cabinet confidences, we're still not serving the people we're trying to serve by getting them the funding that we were trying to get them. It's an unfortunate situation that we have in front of us.
The day the prorogation occurred.... I was in the House earlier, and the Conservatives were mentioning prorogation. The government House leader's office released these documents for all of us to read. We had some days to read those. We went from having a COVID-19 committee in Parliament to going toward having a full Parliament, which was scheduled in September. We lost three days in the House because of prorogation in order to get a throne speech. In the meantime, the committee could continue this work—
October 28th, 2020 / 8:25 p.m.
Liberal
Lloyd Longfield Liberal Guelph, ON
As well, the law clerk did realize that some of the documents that—
NDP
Peter Julian NDP New Westminster—Burnaby, BC
Mr. Chair, I think Mr. Longfield is trying to get back to the subject already, so I'll retire my point of order.
Liberal
Lloyd Longfield Liberal Guelph, ON
I feel like I'm at the kitchen table with my three daughters and my wife. If they knew that they could call a point of order every time I added a few things, I would never get a chance to finish my stories at that table either. However, I will keep on point as much as I can, given the way that I have conducted myself.
These were exactly the same documents, and the only difference that I've shown tonight is in the law clerk's own redactions, which were requested by the committee and which he thought were necessary based on the direction that the committee gave him, as you can clearly see in these comparisons and several more that I'm going to highlight now. I have a few more to look at.
The documents provided by the government were in good order. There are minimal redactions. If the opposition members have issue with the redactions made by the law clerk, they should take them up with him. We should have the law clerk come to our committee so that you could tell him that he shouldn't have redacted that. Then you could have that discussion but right now we can't. I'm acting on behalf of the law clerk, which is another situation that we don't need to have.
I want to turn the committee's attention to just one more example here on page 615 of the ESDC document release. I have it in front of me, and you can get it in front of you with the electronic documents.
Again, it was redacted by the parliamentary law clerk, and the mirror image of that page was also released by the government House leader. You can see a lot of black.
On the left-hand and right-hand copy, you can see that the person it was addressed to was Daisy. It says, “Hi, Daisy”, “Yes, Michelle”, and Michelle's name is taken out, but the content of the discussion is there. It says she is the cabinet liaison officer and she'll be getting in touch. The names of the people who were in the discussion were redacted. The purpose of the discussion was not redacted.
Again, at the front of the next part of it on the same page, all of the contact information is redacted, but the content is totally not redacted: “Good morning, colleagues.” You can read that. I won't take up the time to read it into the record, but we do have that document in front of us.
As you can see, these examples go on and on. Unfortunately, they got thrown up in the air, trampled on and treated disrespectfully, as I've said, but you can see that these emails are actually from real public servants and that they are on topics relevant to the CSSG. They're virtually untouched with regard to the emails provided by the government House leader.
However, it's not just in the PCO and ESDC documents that we see these discrepancies. Let's quickly turn our attention for a moment to the documents provided by Finance Canada.
Another issue is finance, and, of course, Finance Canada has been very involved with the discussions. On page 44, there's a great example from the finance documents. It's the first glance of the documents provided to the committee by the law clerk. You can make out, again, what's nefarious here: There are all kinds of blackouts. There's something being hidden, but now the curtain is lifted. What's behind the black ink? Mr. Poilievre likes to point out all the black ink, but what is it actually covering?
When we compare the pages, we can see the documents released by the government House leader without redactions. I know Mr. Poilievre has been trivializing the fact that we pointed out redacted phone numbers, but you really can't argue with the side-by-side comparison. I mean, look at it. The fact is that the black ink that he refers to was done in keeping with the committee mandate, and it was carried out by the law clerk himself. You can see it was contact information, the email addresses and the phone numbers, but the content is still there.
To continue on, Chair, it's important to point out that we do very much appreciate the hard work of the office of the parliamentary law clerk and the public service when it came to preparing these documents in the last session. They did it quickly in the middle of a pandemic, working from home in some cases, I'm sure. As I've noted, while there's nothing inherently in this constant push and pull between government and Parliament when it comes to accessing Crown documents, I think we can all agree that those involved in helping compile and review these documents are dedicated public servants, and that they have done an amazing job, especially considering the circumstances they and their families are in and the pandemic that we're all going through.
The motion in the House this week is for more of all these documents. When they are trying to serve us, serve Canada and serve the community, now they're going through all of these thousands of pages of redactions. I don't want to draw the attention of the committee to all of the documents, but for page 245, we'll just quickly look at that one. We could go into the thousands, but the pattern is showing.
The finance department's document release, when we compare it with the law clerk's release from the first session, shows the stark differences. There is a lot of black, and behind the black we have a name. We do see what the subject was, and we can see what looks like a signature line that has on it a Government of Canada telephone number. Signature lines take up a lot of room. They are repeated on a lot of documents. It does show that it came from the Department of Finance, and it does show that it's the Government of Canada. The rest of the signature line is darkened.
Not to harp again on Mr. Poilievre, but he has brought it up. I really think that he and his colleagues on the other side are going to have to move on from blaming our government for overly redacting and blacking out pages. From here, it looks like the government House leader has released exactly what was requested when the parliamentary law clerk carried out the wishes of the committee in its motion, in really operating under our direction. We don't need a Speaker's ruling on this. We, as a committee, decided that was what we needed, and that's what was provided.
A similar example of what appears as a complete redaction appears on page 310 of the finance department's documents because, as noted here, the documents from the law clerk are full of redactions. Clearly, these are names of public servants, along with the elusive phone numbers that Mr. Poilievre is after. What are the names of the public servants? How many of them are on the document?
Well, now you can see them. We can see who they are because the documents that are being released by the government House leader now show who they are and their contact information, which puts them at risk if this is something that goes out and people want to start blaming staff. I think of my staff. I operate on their behalf. I will take the questions for them, because I'm their leader.
We are trying to get the leaders in here to talk to us about why they did what they did and so far the committee has not let that happen.
As I mentioned earlier, the documents released by the government House leader were lightly redacted by the public service in keeping with their responsibilities under relevant legislation and statutes, but in keeping with the promise of Mr. Shugart, the Clerk of the Privy Council, a significant amount of information, including cabinet confidences, which we didn't ask for, were included. Now, if the law clerk chose to take a different view and redacted some of the information as he saw fit, in keeping with the motion from this committee, then that was his prerogative, because we didn't ask for that information.
You'll notice that the government has done a fulsome job of providing what we asked for, and more, and brought it forward to the committee. It's disingenuous, in my opinion, for the opposition, Mr. Poilievre and his colleagues, to say that we're pushing a narrative that.... They're pushing the narrative that we're not being fulsome, and we're saying that we're being open, and that's being challenged, but how can you challenge that when you see the documents in front of us?
We haven't contravened best practices. We've followed the release of the documents. In fact, the government has released more than what we asked for, as I said, with a number of documents that had cabinet confidence. Some of the cabinet confidences were redacted, as Mr. Fraser pointed out last week, because they had nothing to do with our study, and they never, ever, ever would have seen the light of day under the administration of the former prime minister, Stephen Harper. We know that and the record there. It's the administration that Mr. Poilievre was also a member of. He knows what redactions are and he knows what openness is. I cannot see how you could look at this as anything but being open as a government. Mr. Poilievre defended the complete redaction of a document in 2014, and to try to conflate and substitute what the law clerk prepared with what the public service prepared and was released by the House leader is just disingenuous.
It's plain for everyone to see, in the examples I've shown tonight, that the public service was comprehensive in its work. It compiled and provided information as it relates to WE, and this was released by the government House leader. In this case, I've shown throughout my remarks, as I've consistently been showing, that it doesn't matter which part of the documents we look at; there are clear differences in the level of redactions. We have opened up to show what was being changed, but unfortunately the people making the changes are not being welcomed into the committee to talk to us about it.
Just about the last thing is page 1,198 of the ESDC document. The point has been proven already—we've been proving it over and over—that there are lots of redactions on page 1,198. The government House leader page has none—zero. You can see in the information, “Thanks. Looks really good. Cheers.” This came from Stephen. We didn't know that until we lifted the curtain.
Let's say I pull out page 160 of the PCO document. We can look at the copy released by the government House leader. There is minimal redaction, either for non-relevance or in relation to some attachments that have nothing to do with the student service grant. If we look at the rest of the email, we can see the majority of the text.
If we were to compare this with the law clerk's version that was released to us before prorogation—and we had time during prorogation to look it over—we'd see lines that are black. Now, if you look at it in front of a TV camera, you can wave the page around and see there's no black. It looks like a page that has just come off a printer. A big chunk of the document is now open. We can see what the differences are. However, under close inspection, it is, again, mostly personal information that we see. It's related to the public servants in the chain. However, this is not the case in the documents compiled by those same public servants for disclosure, as released by the House leader.
In review, Chair, throughout my remarks I've continually pointed out the rather stark difference in redactions between the documents released to us briefly in the previous session of Parliament and the documents released by the government House leader. It's a stark difference. The redactions that were outlined in the motion for the production of documents and the redactions carried out by the law clerk are totally in line with what the committee was looking for. The truth is in front of us. The government provided over 5,000 documents. These documents included unprecedented access to cabinet confidences, the discussions among public servants and the previous agreement that you would never have seen under this kind of disclosure. In fact, Mr. Poilievre and his colleagues fought tooth and nail to get what was a choking amount of information. I would only speculate, but I think it wasn't expected that this level of information would be provided, and it was.
As I noted in my remarks, this is the kind of natural tension that exists between legislative and executive branches of government and the public service. My colleagues forgot that this country operates with three equal branches of government. They're correct about the supremacy of Parliament, but even in the history of this place, it has always been recognized that there are limits on what Parliament requests and what the Crown discloses.
Our government takes its responsibility very seriously, including providing parliamentarians with as much information as possible to do our work. However, members of Parliament recognize as a long-standing precedent that some information cannot be disclosed for the reasons I've given. The Clerk of the Privy Council committed to ensuring the committee had all documentation that related to the government decision-making process regarding the Canada student service grant. All the information that we asked for was there. This was provided and released by the government House leader.
Our government was and is committed to ensuring that the committee has access to information directly related to its study of this matter. However, this doesn't mean that unrelated cabinet confidences were not going to be protected. This was done where it was necessary, and really doesn't impact the study.
Where the law clerk chose to redact further in relation to privacy, that was his decision, and likely in keeping with the committee's motion and instructions. The evidence is clear: This idea that we submitted pages and pages of blacked out documents is simply not the case. There was a lot of drama behind that, but when you look at the pages themselves, the drama is taken away as we look at the redactions, even comparisons of the redacted versus unredacted material. We provided detailed and unprecedented access to cabinet confidence as it relates to the Canada student service grant. The documents clearly show that nothing nefarious took place.
The opposition is clearly playing partisan games here. It's looking for different versions of these documents and looking to spin further controversy out of them, when there's clearly none to be had. The students still don't have the service we're trying to provide them. For the good of the country, we should continue to battle the second wave. We need to now turn our attention to the mandated responsibility.
NDP
Peter Julian NDP New Westminster—Burnaby, BC
On a point of order, Mr. Chair, I do question the relevance of this. The member knows we are suggesting that this go to the non-partisan Speaker. The only people being partisan are government members.
Liberal
The Chair Liberal Wayne Easter
I don't believe that is a point of order; that's more of a debate.
Please continue, Mr. Longfield.
Liberal
Lloyd Longfield Liberal Guelph, ON
I did address that at the beginning of my comments that the Speaker doesn't sit on the committee. It's the committee's job to do its job, and not to defer to the Speaker. The Speaker has another job to do, and that's to conduct the House of Commons and all of his other responsibilities without having to go into every committee and be the adjudicator. This isn't a court of law; this is a committee.
We all have our opinions that we put forward, and we back them up with information. For the good of the country, as I was saying, we have to keep battling COVID-19. We have to turn our attention to our mandated responsibility to conduct pre-budget consultations. Minister Freeland made some comments in the media today, and she's going ahead with things that we need to be talking about as a committee.
Canadians need to know that we're listening, and that we're focused on the economy and protecting jobs. This year the pre-budget consultations will be as crucial as ever. We haven't had pre-budget consultations, because of COVID, and now we have to get to them.
As we go forward I'm really hoping that my opposition colleagues will set aside their partisan ambitions and stop trying to grab headlines. I am hoping that Mr. Poilievre's motion will be aside and that the opposition will work with the government to advance what's in the best interests of Canadians right now.
We need to begin pre-budget consultations and to look at the economic and financial plan of the government to continue to fight COVID-19 and to get us us through the economic and health crisis. We need to do that together. The public doesn't need to see partisan bickering. They need to see parliamentarians working together on behalf of their constituents. I'm here to do that, Mr. Chair.
Liberal
The Chair Liberal Wayne Easter
Thank you, Mr. Longfield.
Next on my speaking list I have Mr. Fragiskatos and Mr. Sorbara.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
Thank you very much, Mr. Chair. I appreciate that.
I see my opposition colleagues, but I'm not sure if they have been following along with what Liberal members have been putting forward. Mr. Longfield gave a really outstanding overview of the issues at play here. I certainly hope that the opposition colleagues were listening intently. If they were not, and if they are looking for something else to do during tonight's proceedings, I would advise them that the speech given by the Minister of Finance today is tremendously interesting, and they can pass their time that way. That way, at least they would be able to bring ideas to committee—hopefully in the coming weeks—that could be discussed and focused upon. Issues around the debt-to-GDP ratio and economic growth were among a number of points raised in the speech given by the finance minister earlier today.
With that said, though, I do want to put into the record something that allows us as a committee to further understand the matter at hand and to further put the issues being discussed here into proper context.
I will cite relevant references by previous Conservative Party of Canada ministers and MPs as they relate to the redaction of documents by the government of the day. I will go through a few examples, Mr. Chair.
The first comes from April 25, 2007. It's a quotation from Peter MacKay, as follows:
Mr. Speaker, that is patently false. These reports are received, reviewed and redacted in exactly the same fashion as they have since 2002. The previous government went through the same process. There are lawyers and officials in all departments who make these decisions independent of the political branch of government. There were no ministers and certainly the Prime Minister was not involved in any redaction[s] and decisions made as to what information was to be redacted in the reports.
A further example is from MP Tom Lukiwski from 2011. March 9 is the specific date of the record here in front of us. It reads:
Mr. Speaker, I simply want to suggest that the government believed that the information we provided would satisfy the members opposite in their desire to find information as the cost of our crime bills, our law and order bills.
The quote continues:
However, one thing needs to be discussed here and I hope it is something that would be acceptable to all members. We need to respect, in all cases, cabinet confidence. I know the member for Kings—Hants has argued that a previous government, the previous Liberal government, had released cabinet confidence when requested by the House. However, Mr. Speaker, I think you would find historically that is not the case. There needs to be respect for cabinet and respect for the information discussed in cabinet. That is fundamental to our democracy. While I can appreciate the member wanting information that would satisfy [him] and his committee members in trying to determine absolute costs, the member also needs to respect cabinet confidence. We respect the decision by the Chair, obviously, and we are not challenging that. However, does my hon. colleague believe that the cabinet confidence is fundamental to the democracy of Canadian government?
Obviously, it was a rhetorical question made by Mr. Lukiwski.
Again, on the same date, the same MP continued:
Mr. Speaker, I am very pleased to hear [from] my colleague from Kings—Hants [that he] agrees that there is such a concept as cabinet confidence. However, I think it is important to realize again, as I pointed out in my earlier intervention to his original point of privilege, that cabinet confidence has to be respected in Parliament. What the member is talking about now, though, is information that he needs and his colleagues need in committee to determine whether the legislation brought forward by this government is actually not only affordable to the Canadian public, but necessary. I would point out that prior to the decision today, the government provided that information to the opposition. In other words, as I pointed out in my intervention, we provided the information contained within the documents but not the documents themselves.
My question for the member of the opposition was not whether or not information was or was not provided. It has been clear that information was provided.
My question was whether documents that are considered to be cabinet confidence should be protected by confidence, not turned over at the sheer desire of an opposition that may be doing it strictly for partisan purposes.
I'm reading the quotes here, Mr. Chair. It's all very interesting that Conservatives felt this way at one point in previous times.
It continues: “The question I asked dealt with information versus documents and I did not hear a distinct answer to the question”. That's the end of that particular quotation.
I'll continue with a further example, this one from former justice minister Rob Nicholson, who, on March 31, 2010, said the following:
First, as is well established in law and parliamentary practice, the principle of necessity must underscore all matters of privilege. Second, as parliamentarians, we should always be guided by a principle of great restraint when asserting privileges of the House.... The central issue before you, Mr. Speaker, is whether parliamentary privilege gives the House an absolute and unqualified right to order the production of documents and to receive the documents and whether any expression of views that it might not constitute a contempt of the House.
Mr. Nicholson continued:
On this point, I would remind the House that our parliamentary privileges are not indefinite, nor unlimited, but defined by the Constitution in the Parliament of Canada Act as those possessed by the United Kingdom House of Commons in 1867. On the second point, I would remind the House that exact scope of those privileges have been a matter of debate since Confederation. As you know, Mr. Speaker, many of our parliamentary privileges are unwritten. While there may be general agreement on the existence of parliamentary privilege, because our privileges are not codified, there are quite often debates on the scope of our privileges. There have been occasion where the Government of Canada and the House of Commons have taken different positions on the scope of parliamentary privilege. An example was in the case of Vaid, where the Attorney General of Canada and the House of Commons took different views on the scope of the powers of the House to regulate its internal affairs. We also saw in that case that the scope of the powers of the House was found to be more limited than that what had been claimed. A similar debate is before us today. The member for Scarborough—Rouge River has expressed an opinion on the scope of the powers of the House to send for papers. The Minister of National Defence, on behalf of the government, has taken a different view. Similarly, the law clerk of the House of Commons has expressed his opinion on the powers of parliamentary committees to compel the testimony of witnesses. And the Department of Justice has expressed a different point of view with respect to government officials who are bound by the law and ought not to be pressured by parliamentary committees to breach their duties under statutes like the Privacy Act.... For example, Speaker Beaudoin observed in 1957: No matter how ample its powers may be—
NDP
Peter Julian NDP New Westminster—Burnaby, BC
On a point of order.... Sorry, it's a point of relevance. I gave him a lot of leeway, a lot of leeway, but—
Liberal
Peter Fragiskatos Liberal London North Centre, ON
Well, it's leeway as defined by the member opposite, Mr. Chair. I'm putting the matter into context.
Liberal
The Chair Liberal Wayne Easter
We'll not debate it.
I do think, Mr. Julian, that it is relevant. Parliament's precedents are set on Parliament's previous actions. The debate relates to the redaction of documents, and pretty well everything that Mr. Fragiskatos has said in his remarks—I've been listening closely—relates to previous decisions by ministers and governments related to redactions, or not redactions.
Mr. Fragiskatos.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
I appreciate that, Mr. Chair.
I'll begin on this point by Speaker Beaudoin, in 1957. Mr. Nicholson said, as follows:
For example, Speaker Beaudoin observed in 1957 that: No matter how ample its powers may be, there are certain documents to which the house is not entitled, and that is those a cabinet minister refuses to produce on his own responsibility.
Similarly in the United Kingdom, a resolution on ministerial accountability was adopted unanimously by the House of Commons in March 1997, which acknowledged that ministers may withhold information in accordance with access to information rules reflecting the long-standing practice in that House.
The second problem with the allegation relates to the minimal role that the Speaker is empowered to perform in relation to question period. As O'Brien and Bosc state at page 510:
The Speaker ensures that replies adhere to the dictates of order, decorum and parliamentary language. The Speaker, however, is not responsible for the quality or content of replies to questions. In most instances, where a point of order or a question of privilege has been raised in regard to a response to an oral question, the Speaker has ruled that the matter is a disagreement among Members over the facts surrounding the issue. As such, these matters are more a question of debate and do not constitute a breach of the rules or of privilege.
Still from Mr. Nicholson: “While I respect our Law Clerk, his views are opinions, not the law”—not the law, Mr. Chair—“it is not a breach of privilege for a law officer of the Crown to hold a different view. To suggest that a legal adviser who has a different opinion from our Law Clerk, from the member of Scarborough—Rouge River, or even of the House as a whole, is somehow in contempt of the House, would be an abuse of our parliamentary privileges.”
Officials also have a duty and a specific legal responsibility to hold in confidence information that may have come into their possession in the course of their duties. Therefore, when appearing before parliamentary committees they are bound by these legal obligations, as well as an obligation to the minister and to the government, not to disclose information that is confidential for reasons of national security or privacy or because it consists of advice to ministers.
This has never been challenged by the House of Commons. In 1991, the government issued “Notes on the Responsibilities of Public Servants in Relation to Parliamentary Committees”. This document, which has not been rescinded or altered under successive governments, states:
Public servants have a general duty, as well as a specific legal responsibility, to hold in confidence the information that may come into their possession in the course of their duties. This duty and responsibility are exercised within the framework of the law, including in particular any obligations of the Government to disclose information to the public under the Access to Information Act or to protect it from disclosure under other statutes such as the Privacy Act.
To argue to the contrary would be inimical to the principles of the rule of law and parliamentary sovereignty. A parliamentary committee is subordinate, not superior to, the legislative will of Parliament, as expressed in its enactments. There should be nothing controversial in that statement. It simply means that where the Parliament of Canada has, by statute, enacted the duty of confidentiality and imposed it on government officials, or where the law of solicitor-client privilege imposes a similar duty of confidentiality on lawyers not to disclose the legal advice given to their clients, or when some other legal duty, such as Crown privilege, is at stake, the proper attitude of government officials cannot be that they are instantly relieved of their legal duties when they are called to appear before a parliamentary committee.
In order for there to be a valid question of privilege, there must be evidence that the House and its members have been impeded in carrying out their parliamentary duties. I would argue that, to the contrary, the government has made attempts to facilitate the—
Liberal
Peter Fragiskatos Liberal London North Centre, ON
—work of members in holding the government to account.
NDP
Peter Julian NDP New Westminster—Burnaby, BC
Relevance, Mr. Chair.
He is presuming the Speaker's ruling on this. He can't presume—
Liberal
Peter Fragiskatos Liberal London North Centre, ON
No, I will push back there, Mr. Chair. With due respect to Mr. Julian, I am—