Evidence of meeting #51 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 decision.
A recording is available from Parliament.
9:15 a.m.
Conservative
March 18th, 2011 / 9:15 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
I shall.
9:15 a.m.
Conservative
The Chair Conservative Joe Preston
If I cut you off, I'm not being rude. I just want to get to a round of questioning. All right?
The floor is yours.
9:15 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
I began my remarks by trying to identify the steps in the process. I'll just go through what has happened and then I'll raise the question.
As I understand what transpired, the basic facts are not seriously in dispute. Events proceeded more or less as follows.
One, a letter was submitted to a House of Commons committee, and the letter, signed by both the minister and the two senior public servants, had a handwritten “not” inserted into it, which reversed its meaning.
Two, the minister appears at first to have told a parliamentary committee that the department did not recommend that particular grant, as the “not” in the letter indicates.
Three, it appears that when the senior public servants signed the letter, the handwritten “not” was not in it, and it was inserted later.
Four, in response to questions, the minister said she did not know how the offending “not” got into the document.
Five, the minister also later admitted that the offending “not” was put in on her instructions, but she does not know who put it there.
Six, opposition members accused the minister of deliberately misleading the House.
Seven, the minister, I believe, responded that she was not lying, but rather because she did not know who exactly put the “not” in the letter, she had answered the question truthfully, and the parliamentary secretary supported that.
Next, in his first ruling on the affair, Speaker Milliken observed that:
The full body of material gives rise to very troubling questions. 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.
The Speaker could not take the full body of evidence into account at that point, so he did not rule that there was a prima facie case.
Finally, when the Speaker was apprised of the full body of evidence through a report, he did not go so far as to determine a prima facie case of contempt; rather, he recommended that it be referred to this committee.
I shall remind the committee that contempt of Parliament is the gravest offence that Parliament can find a private person, an official, a member, or a minister guilty of committing. The House can, after it finds a person guilty of contempt, one, leave it at that, which is the normal practice, with the finding of contempt considered adequate punishment in itself; two, expel the member or declare the seat vacant, and members have been expelled on four occasions, including Louis Riel twice, and Fred Rose, who at the time, 1947, was already in prison for contravening the Official Secrets Act; and three, the House can incarcerate the offending person, a punishment that last occurred in 1913.
I'm not going to go into the question here of whether the minister, in the added “not” case, Bev Oda, is guilty of contempt of Parliament, except I probably will, to observe that, as I understand it, she has, among other things, admitted to having misled the House. As the lawyers would put it, res ipsa loquitur, the thing speaks for itself. The doctrine of ministerial responsibility is at the core of the power and accountability of our parliamentary system. It does not matter who put the “not” in the letter. It was done in her name and apparently on her instruction. The act of doing it was falsifying a document. It fundamentally misrepresented the advice given to the minister by senior public servants. Nor does it matter whether the minister's signature was put there by a machine; it still remains her signature, and she holds responsibility for it being there.
Having said that, I want to point out to the committee that this is the second time in the not too long past that there has been a misrepresentation of the advice given by senior public servants to ministers...a misrepresentation by the minister to the House of what happened. The first was the issue of the advice given by Canada's chief statistician, Munir Sheikh, to his minister about the utility of a voluntary as compared to a compulsory survey. In that event, Mr. Sheikh had to resign to protest the misrepresentation of advice. I can go into that in more detail, but it's just history here.
Second, on this one, the public servant whose advice was misrepresented by having the “not” put in there did not resign, and it was a much smaller issue, because the compulsory survey is the core and heart of Statistics Canada's work for Canadians, for Parliament, and for everybody who needs to use statistics.
The issue of a grant like this is a much smaller issue, but again the advice given by two very senior public servants was misrepresented.
I do not believe that Canada has yet developed an adequate way to deal with ministers who break the bond of trust by misrepresenting the advice given to them by public servants. I would like to see Parliament be more active in ensuring that such a mechanism is developed.
Whether or not Ms. Oda lied to Parliament is the easy question. What to do when ministers misrepresent the advice they have been given by senior public servants, the core issue in both the Munir Sheikh and the Bev Oda affairs, is the hard one.
Thank you, Mr. Chairman.
9:20 a.m.
Conservative
9:20 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
I'm just wondering if we could get copies of Mr. Franks' opening statement.
9:20 a.m.
Conservative
The Chair Conservative Joe Preston
Do we have those available? Yes. We'll make sure that gets distributed.
We'll go to a seven-minute round. Is it Mr. McKay first?
9:20 a.m.
Conservative
The Chair Conservative Joe Preston
My understanding is we wouldn't distribute it if it were not in both official languages.
Welcome, Mr. McKay, to our committee.
9:20 a.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Thank you, Chair.
Thank you, Professor Franks.
There's little or nothing you've said with which I disagree. Res ipsa loquitur: the matter does speak for itself.
I was interested in your parallel between the Munir Sheikh census issue and the misrepresentation of what civil servant advice was given.
I don't know whether you've had an opportunity to read the material that was in the original grant, but it's quite complimentary to the work of Kairos and quite fulsome in its praise for the work of this particular organization. It's signed off by quite a number of organizations who actually reviewed the application. Then CIDA is made to be blamed for the initial decision.
The minister has since changed her version of those facts, but the Speaker said that these documents were doctored to make it look as if the decision was made by the CIDA officials and that they would be rightly disturbed.
Is it your view that Margaret Biggs is in a particularly awkward position and that possibly she should tender her resignation for being misrepresented by the minister?
9:20 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
It's a good question. I tried to make a distinction there between the Munir Sheikh one and the CIDA one because the compulsory survey is the heart and core of the work of Statistics Canada. Statistics Canada has had an internationally high recognition because of the work it does based on that. The doctoring of a document for one single grant doesn't have the same impact on CIDA as the shift to a voluntary survey does for Statistics Canada.
Ms. Biggs could have resigned on a matter of principle here, but I don't think it had that level of salience to the organization.
If I can just say one more thing here....
9:25 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
On the part of Parliament, I think that it is an even more serious matter, but that is the question of Parliament itself being entitled to get the truth and accuracy from its witnesses, including ministers.
9:25 a.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I don't disagree with you on the order of magnitude, the difference between what Minister Oda did to Margaret Biggs as opposed to what Minister Clement did to Munir Sheikh. The magnitude is different, but the point is the same.
The point is that a civil servant, a faithful civil servant, a capable civil servant, an intelligent civil servant, giving the best possible advice, is made to appear in public as having given the exact opposite advice that they gave to the minister. That goes directly to your core point, which is ministerial accountability.
Am I interpreting your remarks correctly?
9:25 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
Yes. All I will add is that if every time a senior public servant's advice is misrepresented they have to resign, I'd think we'd soon run out of competent senior public servants courageous enough to give their advice even when it disagrees with their minister's.
9:25 a.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I don't disagree with you on that particular point.
I wanted to go to another area, which has to do with why we're here. There has been a finding of prima facie breach of privilege. Privilege is a core concept in a functioning parliamentary democracy. It's so important to a functioning parliamentary democracy that everything else stops while the issue is dealt with. It takes priority over all else.
That issue presumably would then translate into a committee in that all other matters in the committee would stop while the issue that's referred to the committee is dealt with. If a privilege issue is referred to the committee, it's dealt with as a priority over all other issues.
Would you be of the view that any delaying motions, any dilatory motions, any filibustering, and any other matters that would delay the committee arriving at a report in a timely fashion, as instructed by the House, would in fact be a fresh form of contempt?
9:25 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
There's an expression in the law, “pith and substance”--I'm not lisping--and the issue here is does Parliament ever stop playing games between the parties? Or when does it stop? That's the other one.
Any motion that is acceptable under the orders of the House of Commons, and that the Speaker recognizes as acceptable, is acceptable. In the Standing Orders, matters of privilege take precedence over almost all other business, and have to be debated immediately they are introduced. That's correct.
I'm not going to go down that route, because yesterday and again today I have been trying to make the point that there are in Parliament matters of substance of utmost importance to the governing of the country and to what government can and cannot do through legislation. There's also a constant battle between the parties, which sometimes degenerates more into games than into useful argument.
I have tried to suggest, in the previous discussion on the release of material and what is a cabinet confidence, that the rulings of the Speaker have some differences in them and that it's up to this committee to start the process of resolving them. I do not want to get into the question of whether the games between parties are good or bad on this issue.
Thank you.
9:30 a.m.
Conservative
The Chair Conservative Joe Preston
Thank you, Professor.
Thank you, Mr. McKay.
Mr. Lukiwski, for seven minutes, please.
9:30 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you, Chair.
Thank you, Professor Franks, for being here again.
Professor Franks, I note you start off by saying in your opening statement that, as you understand what transpired, the basic facts are not seriously in dispute. With all due respect, I would challenge some of what you consider to be fact here, sir, and I just want to go over a litany of some of the statements you have made that I do not believe are factual.
Your second paragraph says that the minister first appears to have told the parliamentary committee that the department did not recommend the Kairos grant. That in fact, sir, is not true. At the December 9 committee meeting, Minister Oda—11 separate times—told the committee that it was her decision and her decision alone not to fund Kairos. At no time during that committee did she infer, imply, or state outright that it was a departmental decision. She has always stated it was hers. So I would suggest, sir, that your statement of what you consider to be fact is not factual.
In paragraph 3 you say:
It appears that when the senior public servants signed the letter, the handwritten “not” was not in it
—which is true—
and that the “not” was inserted later.
That is true.
In other words the altered document purports to indicate the public servants supported the opposite of the actual recommendation that they approved and signed. This becomes public knowledge.
That, sir, is not true. As Minister Oda has explained on several occasions, the document she received from CIDA was an internal document, not a parliamentary document. In other words, in lay person's language it would be like an inter-office memo. It was a memo from CIDA officials saying that in their opinion, they recommended funding of the grant to Kairos.
When the minister received it, she made her determination that she did not wish to fund Kairos. She told her staff to relay that information back to CIDA. Then she left it with the staff to do that. One of the staff members put the word “not” in there and sent it back so that the CIDA officials would know the minister did not want to fund Kairos. There was no misrepresentation. There was no deception involved there. In fact, Margaret Biggs, the president of CIDA, has stated before committee that she completely understood what the minister's intentions were. The “not” was, in basic terms, irrelevant. It was not meant to deceive, in other words.
I dispute your contention that it was intended to deceive. That is what paragraph 3 refers to.
In paragraph 4 you say, “In response to questions the minister says that she does not know how the offending 'not' got into the document”. That again is an incorrect statement. She never was asked the question: Do you know how it got there? She was asked the question: Do you know who inserted the “not”? She answered truthfully, saying, “No, I do not”. She did not know at that time because she had merely instructed her staff to convey her wishes back to the committee. Your statement there is not correct, in fact.
I just point those out, sir, not because I'm suggesting in any way, shape, or form that you are trying to cloud the issue. It's just that, unfortunately, you have an impression that perhaps many others have, and that's why the minister will be here for two hours today to fully clarify everything that happened, but it is important for this committee to understand that some of the statements you're putting down there purportedly as facts were in fact not as you indicate they were.
9:35 a.m.
Professor Emeritus, Department of Political Studies, Queen's University, As an Individual
I accept that totally, with one qualification. My understanding is that the two senior public servants signed the document and then subsequently the “not” was put in. In other words, they signed the document saying that the grant should be made, and the document, once signed by the minister, had reversed that intention.
I believe that, in the law, that is not a good thing to do. I believe that if the minister had wanted to make it absolutely clear, there should have been an additional letter saying “I cannot sign the document. I do not support this and therefore it's rejected.”
Apart from that, I agree that my statements are not correct, and I apologize. What I tried to do.... And you'll notice I was very cautious in what I said there, that this is my understanding. I appreciate your correcting me on them all.
Again I raise the question, and I won't back down on this: Isn't the significant issue that the document, as it was presented to the committee in its original form, had the “not” in it and the two signatures, which implies, insofar as I know the law, that those signatures were put on to support the document as it was presented?
9:35 a.m.
Conservative
9:35 a.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you.
If I may, Professor, respectfully, I don't agree with that. In fact, even Ms. Margaret Biggs, the president of CIDA, admitted and has stated publicly that the document they sent over, the internal document--this inter-office memo, in other words--did not have a place in it for the minister to register her disapproval of the recommendation.
They admitted that was something they should have corrected, and they're taking steps to correct it, so that now, the documents--either recommending or not recommending a grant--that go to a minister from CIDA would have an opportunity, a space, where the minister could say “Yes, I agree with your recommendation” or “No, I do not agree”.
Mrs. Biggs says that was the root of the problem here. She didn't have a problem. CIDA officials themselves did not have a problem with the manner in which Minister Oda replied to them indicating her displeasure and her disapproval.
So I guess my point is—and this is where we could debate, and I don't think it's necessary to debate it—that if the CIDA officials did not have a problem, if they understood completely the minister's wishes, they were not offended by her inserting the word “not”, because they understood that was just a transmittal of intention of the minister to not fund Kairos. If they didn't have a problem with that, if they understood what the minister's wishes were, why then should we have a problem with that?
