Procedure and House Affairs Committee on March 18th, 2011

[Dr. Ned Franks]

I think the answer is again very simple. Perhaps it is indeed simply a lack of an adequate procedure in the department; nevertheless, a document was submitted to the committee that purported that three people agreed with that document, whereas two people had signed it not agreeing to it. I'll leave it at that.

[The Chair, Conservative, Joe Preston]

Thank you very much.

Monsieur Paquette, seven minutes.

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Mr. Chair.

Professor Franks, thank you for being here today. I think your testimony was most enlightening.

I would like to begin by saying that, the minister lied and that’s factual. On April 23, 2010, in response to a question on the order paper—so, it’s written down; it’s not something that was said or that could have been interpreted—she said that the decision not to fund KAIROS was made by CIDA. On December 9, so several months later, she said the opposite in committee. But, we have on paper the fact that she said that it was CIDA’s decision and that she had endorsed it. So, as you mentioned, we are faced with two cases of misrepresentation on the part of senior public servants, simply to support the government’s position.

You mentioned Statistics Canada and the matter of the mandatory long form. Obviously, here in committee and in the House, we are talking about Ms. Oda's false statement, and also about false written statements that imply that CIDA supported the government’s decision to cut funding to KAIROS. In addition to the lie, we are dealing with the falsification of a document because, regardless of whether there was a place on the form for Ms. Oda to indicate that she didn’t want to fund KAIROS, all she had to do was not sign the document. Instead of that, someone added a “not” and she signed it. The two other people who had signed previously without the “not” discovered later that they had signed a document that had been falsified after the fact. I feel there is a governance problem there.

First, in British parliamentary system, trust is the basis of support to the government. In this case, the trust of parliamentarians was breached. I would like to know whether you think that we could go so far as a contempt of Parliament based on the facts and how Ms. Oda acted. Secondly, there is the ministerial responsibility that concerns the way Ms. Oda behaved in this matter. Shouldn’t she resign?

I am asking you this question because I saw, at the end of your presentation, that you were not willing to go so far as to recommend it to us. But could this go so far as contempt of Parliament concerning the government’s governance and to a demand for the resignation of the minister who breached the trust of parliamentarians?

[Dr. Ned Franks]

The thing that puzzled me about it is the absolute silliness of presenting a document--which I still believe was falsified--to a parliamentary committee that purported to represent the consent of the three signers and actually did not.

I shouldn't say “consent”, but the “opinions”, because it is the duty of public servants to implement the orders of their ministers. And that I do not think is in dispute here. I think that CIDA can perfectly and happily live with the decision that was made there, even though it was against the advice of their officials.

I do consider the presentation of that document in that form to be a very serious offence against what Parliament is entitled to get as documents. Misrepresentation of that sort is very serious. And it doesn't, in my mind, matter who put it there; it's the minister's responsibility that it was there. And it doesn't matter whether CIDA had another kind of document or not. The letter could have been rewritten very easily. That takes a few minutes or seconds.

What matters is that the letter that came before the committee had in it the appearance that three people had agreed and recommended a decision, whereas only one of them had done it. Now, that's a problem. And sure, at one level it's a secretarial and administrative problem, but at another level it's Parliament getting something that was not an accurate representation of what had happened.

[Bev Oda, Conservative, Durham, ON]

Something struck me in your presentation, and I would like you to explain it further.

In point one, you say, “This change reflected the views of the Prime Minister on the desirability of the grant.” So you imply that the Prime Minister did not want KAIROS to have the grant.

The problem is not so much that the government cut the funding—although that constitutes another problem we could debate—as the way in which it was done. This was presented as being the result of a recommendation from CIDA, which wasn’t the case.

You referred to the Prime Minister. Here’s what I think happened. Hon. Bev Oda signed the document recommending the grant and, when the Prime Minister found out about it, he told her that he did not want the government to fund KAIROS. At that point, she had no choice but to falsify the document. Whether it was her or someone else, it doesn't matter.

You said that this change reflected the view of the Prime Minister. Yes, the minister is responsible, but don’t you think that the Prime Minister is also a responsible party in this whole matter?

[Dr. Ned Franks]

I don’t think so, because the principle of ministerial responsibility applies to the minister, in this case, Ms. Oda.

The matter of the Prime Minister’s intentions is something else altogether. I think that the concerns must be with the minister herself, and not the Prime Minister. It’s Bev Oda's signature, and not the signature of Mr. Harper, that appears on the document.

[Pierre Paquette, Bloc, Joliette, QC]

I would just like to mention the fact that the Prime Minister did not ask her to resign, as was the case for the member for Beauce or the other member whose name escapes me, just shows that he might be somewhat responsible. But we'll never really know this.

You mentioned that machine-made signatures were just as valid as handwritten signatures. I would like you to talk about this a little more, because it was raised by the public servants who tried to minimize the importance of the mistake.

[Dr. Ned Franks]

Ministers have to sign thousands of documents, and even deputy ministers do. The Clerk of the Privy Council has to sign probably hundreds of thousands. And normally the act of using that signature machine is a very carefully managed and guarded act, so that only documents that that person feels should be signed are signed.

As I understand it—and I can be corrected on this—in the law it's irrelevant whether the signature is made by a machine or by hand. As long as it's done under the authority of the person whose signature it purports to be, it is construed as the personal signature of that individual.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. Martin, seven minutes for you today.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chairman.

Thank you, Mr. Franks.

Thank you for reminding us in your opening remarks of the gravity of this situation. It's not a matter to be taken lightly. In fact, it's the highest voice or opinion we can render on an issue: to find someone in contempt.

Also, thank you for pointing out that Parliament is not always correct, that Parliament has been wrong in the past, and that Louis Riel was a hero, not a traitor, and probably should never have been found in contempt of Parliament.

So as we go into this study, I think we should be aware of the gravity of what we're about to undertake.

I take your point that the scale of the offence is irrelevant. The magnitude, the scope of it, may not be as expansive as the issue of the long-form census, but I liken it to an employee who steals stationery. An employee may be disciplined for that, even though it's a minor offence, but you just don't know what else is going on.

I guess my question to you, Mr. Franks.... It's plausible, in the way we've outlined things, that Minister Oda did follow the advice of her senior staff and did sign off on the Kairos grant, and somebody else, some other party, came along after the fact, even after she had applied her signature to it, and inserted the word “not”.

We have a feeling that Prime Minister Harper uses his cabinet as more of a focus group than any meaningful power anyway, so somebody from the PMO could have intercepted this and added the word “not” after Minister Oda had dutifully followed the recommendation of her staff. Is that not true?

[Dr. Ned Franks]

We at this point--and that's me as a citizen of the country and you as parliamentarians--do not know how the “not” got there. What we do know is that the minister did not repudiate that “not”. I don't think there is any more issue than that.

The letter was presented, purported as being a letter supported by the intentions of three officials--two in the department, and the minister--and it turns out that the intention of the letter as presented supported only the views of one of those three. I think that is all that needs to be said on that.

[Pat Martin, NDP, Winnipeg Centre, MB]

All we need to know....

[Dr. Ned Franks]

The whodunnit is for somebody else to look at. The fact that it was done is the one that I think must concern you people today.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you for that.

I think there's kind of dual function for this committee. One is to condemn the misrepresentation--what we believe is the deliberate misrepresentation by the minister--but the second is to come to the defence of the senior public servants who did their job, etc.

You point out in one of the paragraphs that you were unable to read into the record that we do not have a good mechanism for dealing with this sort of dilemma in Canada. In Britain, the secretary to the cabinet has been known to take ministers to task when they lie about the advice they've been given or otherwise betray the trust and honour of the public service. Can you expand on that a little?

[Dr. Ned Franks]

Senior public servants in Britain are much more intimidating creatures, I believe, to members of Parliament--and even to cabinet ministers--than they often are in Canada. Somebody like the current cabinet secretary has immense influence, has survived I believe four prime ministers, and in many ways is a counter-power to the elected politicians.

It's part of something where I believe Dicey went very seriously wrong in saying that ministerial responsibility is the only responsibility in our system, because the British, long before the Canadians, recognized that in some measures the public servants were autonomous and had to make their own decisions on their responsibilities, which were different from the ministers'.

Now we have recognized that in Canada, with the introduction of the accounting officer principle by this government in their legislation. The accounting officer approach does not extend to things that are non-financial and non-administrative, like the giving of a grant here, and I think that's right that the minister should have the final decision, but we do not have a mechanism that allows a civil servant who feels that his or her advice has been misrepresented by a minister to express that publicly.

[Pat Martin, NDP, Winnipeg Centre, MB]

I agree. You would think that might be the role of the Clerk of the Privy Council, but in this country their official title is the deputy minister to the Prime Minister.

[Dr. Ned Franks]

Yes.

I think that the Clerk of the Privy Council—and we've had very good ones—has too many hats. He is the guardian of the Constitution, he's the deputy minister to the Prime Minister, he's the secretary to the cabinet and the guardian of cabinet records, and he's the head of the public service, and I believe these often come into conflict. The problem is that in that relationship of speaking truth to power, where often the role of the minister on the other side is speaking power to truth, sometimes these roles can get mixed up.

I've never worked out a way of resolving the dispute. It was one Justice Gomery felt very strongly about in his work on the sponsorship affair. His recommendation, which was that the Secretary of the Treasury Board become head of the public service, wasn't accepted, and probably, in my view, is unworkable.

[Pat Martin, NDP, Winnipeg Centre, MB]

Good.

Misrepresenting the intent--

[The Chair, Conservative, Joe Preston]

You have 20 seconds, Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Misrepresenting the intent of that letter had a political motivation, I believe. Can you speculate as to what advantage there may be to the government for the public to think that CIDA wanted to end Kairos' funding, not the Conservative Party?

[Dr. Ned Franks]

I attribute no motives to people in this. I just believe that there was a better way for the minister to have said that she didn't agree with it, and that's as far as I can go on it.

[The Chair, Conservative, Joe Preston]

Thank you.

Mr. McKay, I think we can try a two-minute round. So you have two minutes, Mr. McKay, for your questions and answers.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair.

Professor Franks, you go through eight or nine paragraphs in which you come to a conclusion. Your conclusion is at the end, on page 4, where you say:

Whether or not Ms. Oda lied to Parliament is the easy question.

You seem to be buttressing your opinion with respect to what the Speaker said on February 10:

Any reasonable person confronted with what appears to have transpired would necessarily be extremely concerned, if not shocked, and might well begin to doubt the integrity of certain decision-making processes. In particular, the senior CIDA officials concerned must be deeply disturbed by the doctored document they have been made to appear to have signed.

That is further compounded by the minister's responses in order paper questions when it says it's “the CIDA decision not to continue funding”.

Do you think, on the face of it, Professor Franks, that this is in fact a prima facie case of misleading Parliament?

[Dr. Ned Franks]

You're asking me to go beyond what I consider my remit. I had a very short time to write this, and that's one of the reasons why in my chronology I said this is how I think I see it or how it appears, and I don't know.

When I get down to the question of the signature I either look at it as a miserable farce--that there was a better way for the minister to overrule the advice of her public servants, and for some reason either she wasn't given good advice on how to do it or she did in a hurry and it was done in error--or else it was done intentionally to do what it appears to do: misrepresent the advice she was given by the public servants. I don't which is the answer there.

[The Chair, Conservative, Joe Preston]

Thank you, Professor.

Mr. Reid, you have two minutes for questions and answers.