Evidence of meeting #37 for Government Operations and Estimates in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was investigation.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Yvan Roy  Deputy Secretary to the Cabinet, Legislation and House Planning and Machinery of Government and Counsel to the Clerk of the Privy council, Privy Council Office
Kevin Lynch  Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office
Patrick Cummins  Principal, BMCI Investigations & Security Ltd.
Marc Tardif  Director, Security Operations, Privy Council Office
Allan Bird  Principal, BMCI Investigations & Security Ltd.
Paul Meyer  Director General, Security and Intelligence Bureau, Department of Foreign Affairs and International Trade
Ian Brodie  Chief of Staff to the Prime Minister, Office of the Chief of Staff, Office of the Prime Minister

9:05 a.m.

Liberal

The Chair Liberal Diane Marleau

Ladies and gentlemen, today we're hosting this session to look into the disclosure of sensitive diplomatic information, which was of some concern to Ms. Clinton and then Mr. Obama.

We have before us a report on the investigation, and we have a number of people who have come before the committee.

I'm really pleased to welcome the Clerk of the Privy Council, Mr. Kevin Lynch. We're very pleased that you have decided to come before the committee to speak to this issue. As well, we have Mr. Yvan Roy, the deputy secretary to the cabinet, legislation and House planning and machinery of government and counsel to the Clerk of the Privy Council.

That's a very long title.

9:05 a.m.

Yvan Roy Deputy Secretary to the Cabinet, Legislation and House Planning and Machinery of Government and Counsel to the Clerk of the Privy council, Privy Council Office

It's too long.

9:05 a.m.

Liberal

The Chair Liberal Diane Marleau

Also with us today is Marc Tardif, director of security operations, and Gary Pinder, executive director of informatics and technical services division.

From BMCI Investigations & Securities Limited, we have Patrick Cummins, principal, and Allan Bird, principal. We have, from the Department of Foreign Affairs and International Trade, Paul Meyer, director general of the security and intelligence bureau.

Most of you are very familiar with the way this works. We are prepared to hear a statement of up to 10 minutes. I don't know if you all have statements, but we certainly will start with Mr. Lynch.

9:05 a.m.

Kevin Lynch Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Thank you, Madam Chair.

I am pleased to appear before this committee on the subject of the investigation the Privy Council Office recently conducted into unauthorized disclosures of sensitive diplomatic information. You have already introduced my colleagues, and better than I would have done.

On March 5, 2008, the Prime Minister asked me to launch an internal security investigation into allegations of unauthorized verbal disclosures by Mr. Brodie and Ambassador Wilson regarding the purported position of U.S. Democratic presidential candidates in relation to the North American Free Trade Agreement and the unauthorized disclosure of the diplomatic report sent from the Canadian Consulate General in Chicago on February 13, 2008.

On May 22, 2008, I delivered to the Prime Minister the report on the investigation into unauthorized disclosure of sensitive diplomatic information, which contains our findings and conclusions. And we'll get into that today. This report was made public the next day and is available on the Privy Council website for everyone.

The purpose of the investigation, as the report sets out, was to determine the timeline of relative events leading up to and following the disclosure of information; to determine, to the extent possible, the source or sources of the disclosure; to report on the findings of the investigation; and to make recommendations to minimize the likelihood of a reoccurrence of similar events in the future.

The investigation was led by the director of security operations at the Privy Council Office, Mr. Tardif. Independent professional services were contracted from BMCI Investigations & Security. We have two of the principals here today. Due to the scope and complexity of the investigation and the volume of information to be examined, we engaged BMCI.

As the report describes, the investigation was carried out in a comprehensive, systematic, and impartial manner in accordance with established investigative standards. And I'm sure that both Mr. Tardif and our two principal investigators will describe what they are.

The investigative process that was followed included examining documentation; conducting comprehensive interviews of 36 individuals; compiling and analyzing reliable source data; and examining salient comments received from various secondary sources during meetings and briefings. The Department of Foreign Affairs and International Trade Security and Intelligence Bureau, represented here by Mr. Paul Meyer, PCO's Informatics and Technical Services, PCO's Telecommunications Services, also represented here, and departmental security officers of four other federal departments also provided assistance in this investigation.

The investigation was extensive and independent. It involved obtaining and analyzing a vast amount of information in a relatively short period of time. The 36 public servants and political staff interviewed consisted of officials from the Prime Minister's Office, the Privy Council Office, the Department of Foreign Affairs and International Trade Headquarters in Ottawa, the Embassy in Washington, the Consulate General in Chicago, and the Office of the Minister of Foreign Affairs. Several officials were interviewed twice.

In addition to the interviews, the investigation involved checking logs of telephone calls placed by these officials of interest on their office land lines and cellular telephones for the relevant time period. These were examined to determine if any contact had been made with the media or with other numbers of interest in either Canada or the United States. Transmission logs for fax machines used by officials of interest during the same timeframe were similarly examined. All e-mails of the same officials were checked to determine who had knowledge of the information and at what point in time, the extent of that knowledge, and whether any inappropriate transmission of information had occurred.

Finally, unclassified, classified, and BlackBerry electronic mailboxes of the federal officials and ministerial staff who received the original diplomatic report from Chicago were examined to determine whether the report was retransmitted to others, and, if so, who those addressees were and whether it was inappropriate for them to receive the report.

During the course of the investigation, the names of a few U.S. citizens surfaced as possibly having been in contact with Canadian officials with access to the report. This fact was clearly outlined in the report on page 8.

As no Canadian government investigator, including the RCMP, has jurisdiction on U.S. territory without the consent of the U.S. government or U.S. law enforcement agencies, the approach of the investigators was to focus on ministerial staff and officials employed by the Government of Canada who may have been in contact with them. This approach included extensive interviews with these Canadian individuals and examination of telephone, fax, and e-mail logs, as well as e-mail correspondence.

The report of the investigation describes the methodology and process employed by the investigators, establishes a timeline of significant events that happened over this period, summarizes the investigators' analysis and findings, and makes recommendations for further strengthening the safeguards for the protection of information. The conclusions of the report are based entirely on the findings of the independent investigative team working with the Privy Council Office, director of security operations. Section 5 in the report, Madam Chair, provides the conclusions of the investigation. These are as follows.

First, any comments that Mr. Brodie may have made during budget lock-up 2008 on February 26 did not reveal any information tied to the diplomatic report of which he was made aware only on February 28. That's the value of the timeline. There is no evidence that Mr. Brodie disclosed any classified information.

Second, there's no evidence that Ambassador Wilson revealed any information tied to the diplomatic report or to any U.S. presidential candidate's position with respect to NAFTA, although his comments likely helped lead the reporter to the Senator Obama campaign. There is no evidence that Ambassador Wilson disclosed any classified information.

Third, the investigation was unable to determine who leaked the report, to whom it was leaked, and whether there was only one leak.

Fourth, the original diplomatic report from Chicago was incorrectly classified. It was actually unclassified and had an inappropriately broad distribution list of 232 addressees.

Madam Chair, there you have an overview of the facts.

I would be pleased to take questions from the honourable members of the committee and my colleagues as well.

Merci. Thank you.

9:10 a.m.

Liberal

The Chair Liberal Diane Marleau

Thank you very much.

Is there another statement by the investigative team?

9:10 a.m.

Patrick Cummins Principal, BMCI Investigations & Security Ltd.

I have no statement to make.

9:10 a.m.

Liberal

The Chair Liberal Diane Marleau

Thank you.

We'll go directly to questions, then.

We'll start with Mr. Bains.

9:10 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

Thank you very much, Chair.

I would like to thank the witnesses for coming. I greatly appreciate this.

As you know, this is a very important issue. This issue, this unauthorized disclosure of sensitive diplomatic information, has been dubbed “NAFTAgate” in the media.

We feel this is a very serious breach of security, which has damaged our international reputation. There are a lot of unanswered questions with respect to the mandate. The primary purpose of your coming before committee is to address some of the concerns and unanswered questions we have.

Mr. Lynch, you indicated that your mandate was really to look into the verbal leaks and specifically the leaked memo.

My first question is with regard to the CTV reporters who effectively reported this information. Why were they not directly contacted themselves? Why did you choose to go through CTV? Why weren't the reporters contacted directly? Obviously their testimony would be crucial to the process, especially with respect to what government officials were saying.

9:10 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

Thank you.

I'll pass to my colleagues to clarify, but my understanding is that we did go directly to the three reporters. The reply back was in the negative, and it came from CTV News, from one of the senior officials in the news network.

9:10 a.m.

Marc Tardif Director, Security Operations, Privy Council Office

That is correct. We sent a fax to the reporters, but the same day, I received a call from the president of CTV who declined the offer to provide us with information.

9:10 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

So it was the CTV president who declined, not the reporters, is that correct? I just want clarification.

9:10 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

He declined on behalf of.

9:10 a.m.

A witness

C'est ça.

9:10 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

Okay, but did you make direct contact with the reporters initially, or was it through the CTV president?

9:15 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

No, the direct contact went to the reporters. The only reply back was through the senior official at CTV News.

9:15 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

The second question I had is with respect to the Associated Press and the fact that they had access to this memo that was eventually leaked. You indicated that consideration was given to contacting them, and you indicated in your opening remarks that there was an issue of jurisdiction.

Again, don't you think that for the sake of completing your mandate it was important to at least make the effort to contact them? If so, was the effort ever made? Obviously you have indicated that you decided not to, but why did you feel compelled not to make that contact with the Associated Press and ask them directly where the leaked memo came from?

9:15 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

The reason was the same logic I gave you in terms of the officials. No Canadian government investigator, whether it's the RCMP or whether it's the individuals we engage, has jurisdiction on U.S. territory without the consent of U.S. government or law enforcement agencies. It's imperative that agents of the Government of Canada respect the domestic sovereignty of the United States in the same way that we would expect the same from the United States. In our discussions we believed that applied to how we should deal with the Associated Press as well.

9:15 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

Did you make an effort to speak with the U.S. authorities to get their consent?

9:15 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

I can actually take you through what it takes to go to the U.S. authorities. We have between Canada and the United States a mutual legal assistance treaty. I'll turn in a second to Monsieur Roy to take you through that.

That actually has to be implemented through the RCMP and it has to be in respect of a criminal investigation, not an administrative investigation. As you will see, the findings and conclusions of the extensive independent investigation that we undertook--and I would encourage you to ask the investigator--did not bring to light evidence of criminal behaviour. The investigators were unable to determine who leaked the report or to whom it was leaked, given its wide circulation and other factors; therefore, the findings of the investigation led the investigators to conclude that there were no grounds to ask the RCMP to investigate the matter, and therefore there would be no way to actually implement the bilateral agreement with the United States.

9:15 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

Doesn't this effectively damage...? Didn't this hold you back from completing your mandate, which was to look into the disclosure of the verbal leaks and of the diplomatic memo? If you can't call the Associated Press and you can't get in contact with them, doesn't this effectively limit your ability to complete your mandate?

9:15 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

No, I think the.... I'll turn it to my colleagues, but what I tried to do in my opening remarks and in the report is describe how we tried to deal with this, which was to spend an inordinate amount of time with the Canadian officials of interest--ministerial staff and public servants who had the document or possibly had access to it--in very structured interviews, examination of e-mails, and other things to see if there was any information or evidence from that side.

9:15 a.m.

Liberal

Navdeep Bains Liberal Mississauga—Brampton South, ON

I understand that very much, but it's the Associated Press that I'm concerned about--the fact that they had the memo and the fact that they actually had access to this memo. We want to know how they had access to the memo and who faxed them that memo. Effectively, that memo was reported.

That's really the issue here. That was part of the mandate, in my understanding. Part of the mandate was to find out the root cause of that leak and how they got access to that memo. Doesn't the fact that we can't even contact them, or that you chose not to--because you gave it consideration, but didn't follow through--limit your ability to complete your mandate?

9:15 a.m.

Clerk of the Privy Council and Secretary to the Cabinet, Privy Council Office

Kevin Lynch

I'm going to turn to Mr. Cummins in a second, but we clearly spent a lot of time with the investigators to try to determine who actually may have provided the report to the Associated Press.

Mr. Cummins, would you comment?

9:15 a.m.

Principal, BMCI Investigations & Security Ltd.

Patrick Cummins

To begin with, the investigation did get considerable information from the Associated Press indirectly through its contacts and its e-mails that it reported to the Canadian officials who initially heard from the Associated Press. It was very clear that the Associated Press, as is standard practice among most journalists, never discloses its sources, so in a sense going to the Associated Press and asking them who sent it is a bit redundant. It's just not going to happen.

A second and more important aspect is that when the Canadian officials were inquiring as to the validity of the document and whether it was actually a real government document, they were told that the Associated Press had received a facsimile copy and had retyped the copy they received. Now they didn't say it was to protect their source, but it's self-evident that's exactly why they did it, so picking up the telephone and asking the Associated Press who sent the fax when they had already clearly indicated they had taken the time to retype it was a non-starter.

In effect, the Associated Press, at least to two different individuals, did indicate the source of the document to the extent they were going to.

9:20 a.m.

Liberal

The Chair Liberal Diane Marleau

Thank you.

We will go to Madame Bourgeois.