Finance Committee on Nov. 24th, 2020

[Ian Shugart]

They take a pen and if lines, groups of words, paragraphs, or one or more pages match the definition of a Cabinet confidence, then they cross out the text. In those instances, and in every situation, we need to ask ourselves whether the words or paragraphs can legitimately be read or not. That's the principle we apply.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

All right. We have strayed somewhat from the question, but thank you for that nice clarification.

However, you didn't tell me who did it. You spoke of a few public servants who are not rookies. So I assume they are experienced public servants. How many individuals were involved in the process?

[Ian Shugart]

Again, it depends on the situation. For example, all documents can be shared among the members of a review team of a dozen or 25 people. I must point out, that is an estimate.

The documents requested by the House as part of the Standing Committee on Health's study constitute millions of pages. I don't have the exact number, but it's a lot. So, many public servants have to do it.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I don't mean to be rude, Mr. Shugart, but we have a limited time for questions. Unfortunately, that means I have to rush you a bit.

You say that 12 to 25 people are involved in the process. Did I understand correctly?

[Ian Shugart]

It's more theoretical than that.

I can provide a few examples of the exercise to the committee.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

As I understand it, you're unable to tell us exactly how many individuals took part in this redaction process. However, I gather you were the directing mind or the supervisor for the whole operation.

Is that correct?

[Ian Shugart]

In principle, it is, yes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Why “in principle”? In practice, was it not?

[Ian Shugart]

No, but, I started the ball rolling in the system, and if people had questions, doubts, trouble interpreting the instructions, the departments could ask the Privy Council Office for a judgment call. In that sense, yes, and ultimately, I am responsible.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

All right.

Can you provide us with a document indicating who was involved in the redaction process in the various departments and in your own department, the Privy Council Office?

I'm having trouble understanding how you went about it. I understand your position very well. It must be difficult for you to answer all questions, if you didn't personally determine which passages could remain and which passages had to be removed.

If you don't mind, I need to understand a bit better how you went about it, Mr. Shugart. Would you be willing to provide me with that information? Thank you.

I have a second factor to verify. Which Cabinet members were consulted in this process?

[The Chair, Liberal, Wayne Easter]

That will be the last question, Mr. Clerk.

[Ian Shugart]

I did not consult with any ministers to have our decisions approved. As I recall, I informed the Prime Minister of my approach to this exercise, but I didn't consult with the ministers or the Prime Minister in making specific decisions.

[The Chair, Liberal, Wayne Easter]

Thank you, both.

It's over to you, Mr. Julian, for the first round of six minutes. The floor is yours.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair, and thank you, Mr. Shugart, for your contributions and service to Canada. We hope you, your family and loved ones are safe and healthy during this pandemic.

In response to a previous question, you said that about 1% of the documents were redacted according to cabinet confidences. Can you just confirm that this is about 50 pages of the 5,000 pages that were redacted or withheld on that basis?

[Ian Shugart]

Mr. Chair, it hadn't occurred to me to do the arithmetic in answer to the previous questions, but if that were the total number, then it would be in that order of pages. I don't know if it would be full pages.

As I said, a redaction can be a line or a paragraph. As I said, our estimate is that about 1% of the information provided to the committee was redacted on the basis of cabinet confidences.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I find that disturbing because, as you know, well over 1,000 pages were substantially or completely redacted—about 1,500 pages of the whole. If we're talking about—

[The Chair, Liberal, Wayne Easter]

Mr. Julian, to interrupt and not take time away from you, can you move your mike a little away from your mouth? The translators are having difficulty. It's coming through a little noisy. Try that.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair. Is that better?

[The Chair, Liberal, Wayne Easter]

That's much better.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I apologize. I didn't want to shout in anybody's ear.

Since we have about 1,500 pages substantially or completely redacted, it's disturbing, quite frankly, to me that you don't have the ability to answer more fulsomely the questions we are asking you. That, of course, was the objective in bringing you here—not the theoretical approach, but rather to have a sense of why things were redacted so substantially.

I have two questions flowing from that.

First off, when you testified on July 21 to us, you stated that there were two cabinet discussions about the WE Charity. Can you confirm that those two discussions were subject to the cabinet confidences?

Secondly, a disturbing number of pages are marked “not relevant”, including references directly to the Canada student service grant. Can you confirm with us how many pages that were marked as “not relevant” were redacted before they were sent to the law clerk? To an untrained observer's eyes, they are very relevant.

[Ian Shugart]

Chair, I want to assure the committee that I don't want to be argumentative, but I also don't want to leave the impression that I have not responded to the committee's request. I wrote a letter to the committee indicating my willingness and that of my colleagues to come to explain redactions. That request was changed by the committee to an invitation for me to come to discuss cabinet confidences in public disclosure. My understanding is that today I have followed exactly the request of the committee. We can follow up with further information and are happy to do so.

On the issue of what is redacted, we're talking about those redactions that were specifically cabinet confidences. There may very well have been other reasons for the redactions, including, as the member points out, relevance, commercial confidence in some cases—not, I suspect, in this one—and solicitor-client privilege, which is a frequent basis of redactions. No one should think that all of the redactions were made because of a certain cabinet confidence. In fact, it's far from it. The majority of redactions were for other reasons. We can provide, perhaps in writing to the committee, a further elaboration of what those redactions were based on.

[The Chair, Liberal, Wayne Easter]

Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

I thank you for your answer, but it's very clear what the motion stated. I was the one who moved the motion. There were matters of cabinet confidence and national security being excluded from the request. That has been a justification for some of the redactions, but the redactions went far beyond that. As you've pointed out, there's a whole number of other categories that didn't reference what the committee clearly indicated.

I have two questions. First, do you understand that when the committee asks specifically for documents, it's not the prerogative of the government to decide unilaterally on a different approach? That's why we're currently still discussing—though it's suspended—a privilege motion. Second, why wouldn't the Privy Council and public servants follow strictly what the committee actually requested back in July?

[Ian Shugart]

Chair, this question—the first question in particular—goes right to the heart of what we are talking about. I consider it a natural and a perfectly justifiable thing for a committee of the House of Commons to ask for information, including cabinet confidences, in this case or in any other. Equally, as I said at the outset, the executive branch has the constitutionally affirmed privilege of withholding certain information in order to be able to do its job. In the case of the WE Charity question, the government provided considerable cabinet confidence. The Prime Minister and ministers spoke to the issues even though they contained cabinet confidences, and, pursuant to that, the documents themselves were provided in considerable volume.

That does not change the constitutional convention that, for reasons of supporting responsible government and the prerogatives of the executive branch of government to do its job, the executive does have the prerogative to withhold cabinet confidences even when the legislature asks for them. This is a point of tension between the two branches of government, and it is not always convenient, but it is a part of our constitutional structure, and indeed it has been affirmed by the court—as recently as this summer, by the Supreme Court of Canada.

[The Chair, Liberal, Wayne Easter]

We'll have to end that round there, Mr. Julian. We're about a minute and a half over.

My apologies, committee, but I do want to clear this up in fairness to the Clerk of the Privy Council.

The motion that we passed at the meeting the other day that brought the Clerk of the Privy Council here today said this:

and that the Clerk of the Privy Council and the Conflict of Interest and Ethics Commissioner appear no later than November 25, 2020 to discuss "cabinet confidence" exclusions to public disclosures

It then goes on to talk about the law clerk. I just want to clear that up because there seems to be some confusion about the original motion and the reason we asked the clerk to be here today according to the motion.

Mr. Poilievre, you are on for a five-minute round. The floor is yours.