Evidence of meeting #49 for Procedure and House Affairs in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was costs.
A recording is available from Parliament.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I appreciate that.
Let me ask you, then, again based on your experience, and even though you didn't have any practical experience in dealing with requests such as we have before us today, hypothetically what would happen if a parliamentary committee had passed motions asking for documents that, if made public, could be harmful to Canada's national security? If you were Clerk of the Privy Council at that time, how would you respond?
As an Individual
We had many such requests. There were always those kinds of requests, and they were always refused.
I want to be clear: they were the application of the access to information.... I have to be very careful here, Mr. Chairman, because I am actually in the Supreme Court still with a decision pending from a case from 2001 in which the access to information commissioner has taken us on appeal to the Supreme Court of Canada. We're waiting for a judgment. Nothing I say is relevant to that case sub judice.
That said, whenever we received requests for those kinds of documents, we would apply the Access to Information Act, so insofar as they were confidences, they were excluded; insofar as they dealt with national security, they were exempted, and those sections would have been redacted and the clean document, if you will, would have been released.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
You said you had a number of those requests during your time as the Clerk of the Privy Council, but you also said that if there were any requests that could have harmed or could have been interpreted to harm national security, you would have refused, flat out, so I'm a little--
As an Individual
I would have applied the act, which is to redact those sections and release the rest of the document.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Can you just give a rough estimation of how many times that situation might have occurred during your tenure as Clerk of the Privy Council?
As an Individual
Don't hold me to the numbers--it is very dangerous for a witness to guess--but it would be hundreds.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
In all of those hundreds of cases, did you follow the scenario that you've just outlined to us a few moments ago?
As an Individual
I did, always.
Again, we're talking about the Access to Information Act, section 69, as I was applying it, or section 21, which was advice to ministers, or section 16 on investigations, etc.
There were also cases in which defendants in court or parties to a court case were asking for evidence for cabinet confidences in relation to processes before court, and using section 39, we excluded cabinet confidences as well.
However, basically, that's right.
Conservative
The Chair Conservative Joe Preston
Thank you, Mr. Lukiwski.
Monsieur Paquette, you have seven minutes.
Bloc
Pierre Paquette Bloc Joliette, QC
Thank you, Mr. Chairman. And thank you, Mr. Cappe, for accepting our invitation.
I would like to come back to the questions we asked you, because they are at the heart of the issue before us.
If I understood correctly what you and Mr. Walsh said, the difference between a Cabinet confidence and information that can be passed on to parliamentarians relates to the process. Everything that leads to the decision-making process is confidential, but once the decision has been made, the information regarding the subsequent steps can be made public. Did I get that right?
As an Individual
Yes and no. Everything regarding the process is confidential and all the information relating to what has been disclosed to Cabinet is confidential. I make a distinction, under the current legislation, between a discussion paper, which is a reference document, and a memorandum to Cabinet. That is an important distinction. It may not exist; I don't know. In terms of the information that is there, it is obviously up to the government to decide whether or not to disclose the information.
I can give you an example. People always wonder whether a copy of La Presse on the Cabinet table is a Cabinet confidence. The answer is no; however, any discussion with respect to an article in that newspaper is confidential.
Bloc
Pierre Paquette Bloc Joliette, QC
When there is discussion of a specific program or legislative measure, from what point on do the costs begin to be calculated?
As an Individual
When a memorandum to Cabinet is being prepared, officials do research and prepare estimates of the cost of that program and any programs that will follow. They provide the Cabinet with the estimated and notional costs of these initiatives.
Bloc
Pierre Paquette Bloc Joliette, QC
When the memorandum is presented to Cabinet, it obviously includes estimates prepared by officials--
As an Individual
According to public documents on the Treasury Board's website—the Cabinet Expenditure Management System—cost estimates have to be provided to Cabinet.
Bloc
Pierre Paquette Bloc Joliette, QC
Based on what you said earlier, these are not Cabinet confidences.
As an Individual
The documents and the actual submissions with all the estimates are Cabinet confidences, but information with respect to these issues can be disclosed, just as the ministers probably did. I don't yet—
As an Individual
In any case, I believe that information on the process followed to gather the necessary information to make a decision, when there is a vote in Parliament, must be available to all members of Parliament.
Bloc
Pierre Paquette Bloc Joliette, QC
When a bill is introduced in the House, there is a costing that should be made public for the purposes of debate.
Bloc
Pierre Paquette Bloc Joliette, QC
As Ms. Legault was saying earlier, there is a difference between the Access to Information Act—which falls within the legal domain, as Mr. Walsh was saying—and the parliamentary domain. The Speaker ruled that parliamentarians should have access to all the information they feel is necessary to—
As an Individual
—make their decisions.
Once again, I would like to make a distinction between Cabinet confidences and the information which is the basis for their decisions or for yours.
Bloc
Pierre Paquette Bloc Joliette, QC
Supposing we are debating enhancements to the Employment Insurance Program, for example. Everyone will expect there to be a costing for that specific measure and that the costing will be made public before the House of Commons is asked to vote on it.
As an Individual
As I was saying, as a citizen, I would like members of Parliament to have access to all the necessary information in order to make an informed decision.