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.
2:30 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
—whether she did or not. Mr. Franks has a different take on the situation, but that is for him to say.
2:30 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you, Chair, and thank you, Mr. Walsh, once again, for helping to bring clarity to our deliberations.
I appreciated your opening remarks, that one of the first prerequisites we have to lay down is what standard of truthfulness we expect. I hope that we would expect the highest standard of truthfulness from any witness, but especially a minister of the crown. I also thank you for your comment about guilt by omission or an offence by omission as much as commission. I think as we wrestle with this, that's what it seems to be coming to.
Also, this idea that you have to ask the exact, right question or you're not going to get any answer...I call it the Rumpelstiltskin effect. Others might even call it the Mulroney effect, because others have used this excuse to be less than truthful, frankly.
Could there be any doubt, when Mr. McKay asked the question at a foreign affairs committee meeting, about what he really wanted to know? He asked, “Who put the 'not' on the document?”, and she said, “I have no idea, I don't know.”
She actually directed her chief of staff to overturn the recommendation of the CIDA officials for the funding of Kairos. It would be reasonable for her to assume that the person she directed to overturn it changed the document to reflect her orders.
I think that's guilt by omission. I think she should have volunteered. She could have said, “I don't know who inserted the word “not”, but I told my chief of staff to reverse that recommendation by CIDA.” That would have been fully truthful. Do you agree?
2:35 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
If I may articulate a standard that I think I had occasion with other committees to articulate, and that is for witnesses, it's that you don't just answer a question within the four corners of the words used by the member posing the question, particularly when the question is one of a series. It's quite evident what the objective is in this series of questions. It's quite evident what's of interest to the committee. While we may in other contexts talk about not having to give evidence that's self-incriminating, we're not here concerned about that sort of thing. There's no possibility of incriminating in that sense here.
I would think it was a duty, not just of the minister but of every witness you have in front of your committees, to be sensitive to what the members' interests are and to answer the questions fully. If you have information that's relevant to what's being asked, it should be volunteered, notwithstanding the fact that it's technically not within the four corners of the question asked.
That's a general rule of practice. I'm not here commenting on Ms. Oda and whether she should or should not have answered your question differently.
March 18th, 2011 / 2:35 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
No, but it isn't an unreasonable expectation as a general rule, and it will be up to us whether we apply that general rule to what we have heard.
The intent to mislead the committee began with her less than fulsome answer to Mr. McKay, but she carried on and continued to attempt to mislead the House by allowing this misunderstanding to linger--I don't have the dates any more--from March till December, with ample opportunities to correct the misunderstanding.
We were led to believe there's no political motivation associated with denying Kairos their funding, that it was the recommendation of CIDA. If you have to figure out the motivation, I think there is a strong political motivation that began when this information was released through a freedom of information request. It was in their interest for the public to believe the denial of Kairos' funding was a legitimate recommendation of CIDA and not some off-the-wall, arbitrary political motivation, such as not liking this organization because they think they're anti-Israel. That was the motivation we seem to be arriving at here.
2:35 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, of course I can't comment on what may or may not have been the motivation of the minister or anyone else involved in this matter in whatever they did or did not say, but I take Mr. Martin's point about it being of interest to Canadians generally, the basis on which funding is or is not provided. That is what the minister is responsible for. It is not unlike a situation where a minister says he or she made a certain decision based on legal advice, and then the committee wants to see the legal opinion.
The short answer to that is it doesn't really make any difference what the legal opinion is. The minister made a decision. The minister is responsible for the decision, and the minister should explain what it is about the law that led him or her to that decision.
The minister is the one who is accountable, and to examine the advice given is to go into the entrails of government operations, which may or may not be appropriate, depending on the circumstances. In this case here, as I said earlier, who put the “not” in the document--
2:35 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
That did pass through my mind, but I thought I wouldn't say that.
2:35 p.m.
NDP
2:35 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
The committee has to weigh how important that is in a situation where we are talking about deliberately misleading. It is a serious offence. It's a hanging offence. It's a capital offence, and we reserve capital punishment--when we had it, anyway--for serious offences, and there was a very long and elaborate process for determining whether in fact the offence was committed.
I can only say to the committee that for your own sake and for the integrity of the parliamentary system, at the end of the day the readers of your report should be as convinced as you are from the evidence you have that in fact this was a serious misleading of the House in this “not” issue and not an incidental failing of a kind that might be forgivable. I'm not making a comment. I'm just raising the question for you.
However, when you get to the other issue about whether the funding was decided by the officials or decided at the political level, yes, there was that period of time when the minister arguably could have corrected the error made by the parliamentary secretary and that error was not corrected until the parliamentary secretary apologized and acknowledged his error. Even there the minister never did say the officials were overruled. Some of you might think that should have been what the minister did, to indicate that this was a decision made at the political level and not a decision based on recommendations from the officials.
How important is that? That's your call. That is for you to decide. All these months went by and no clarification was offered. How many of the debates of the House were led off in the wrong direction because you didn't have the full information in front of you? Those are the kinds of questions, it seems to me, you ought to be asking yourselves, not the mere, incidental fact that there was a period to give the whole truth, but there was a period to give the whole truth on an important matter, a matter that was important to the House and this committee, and our proceedings were denied an opportunity to consider the matter fully because the minister was not fully truthful. You have to weigh that sense of gravity, I think.
2:40 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
Thank you, Mr. Martin.
We have time for about a four-minute round.
Mr. McKay for four minutes, questions and answers.
2:40 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
Thank you, Mr. Chair.
The ordinary dictionary definition of “contempt” is that it's “beneath consideration or worthless or deserving of scorn”. It's a disrespect, in this particular case, for Parliament. We have special rules in Parliament that require truthfulness—truthfulness within the four-square concept of truthfulness. We have special privileges that are accorded to members of Parliament. We operate in a public atmosphere, and we expect that all witnesses who come before us are truthful to the point where it may even be adverse to their own interests.
In that standard, I would suggest, sir, that the expectation of a minister to speak truth to Parliament is in fact higher than for a citizen coming and sitting in the same place that you are. We expect the ministers to tell the truth, and to tell the truth completely and fully, because we are impeded in doing our work if in fact we don't get that work done.
So that's the standard I'm inviting you to comment upon. When a minister replies to an order paper question to the member from London North Centre, is that a full and complete answer? Similarly, with the member from Notre-Dame-de-Grâce, is that a full and complete answer? Or are both members left with the impression that this was actually a CIDA decision?
It's not until we actually come to the December 9 point that we find out that in fact CIDA recommended the grant. So up until that point, we all believed it was CIDA's decision to deny the grant. Isn't that a reasonable conclusion to make?
Then we find out on the famous “not” question that within 24 hours she could have cleared the whole thing up and saved herself a whole lot of grief. Then the parliamentary secretary, when he's cited for contempt, says, actually, “I didn't know.” That was part of the press release. That was all part of the entire information that I was given.
So given this very high standard that applies not only to members of the public coming before the Parliament of Canada, but even more so to ministers, isn't it a reasonable conclusion that at least on all four of those points, including in her testimony today, she falls far short of the standard that should be expected for those appearing before a committee or speaking in Parliament?
2:40 p.m.
Conservative
2:40 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, there are a couple of issues there.
One, you began by referring to a dictionary definition of “contempt”. Dictionaries have tried, since Samuel Johnson's time, to give objective meaning to words, but we all know that many times words are applied in a way outside of the dictionary. “Contempt” means whatever the members of Parliament think it means in a given context, and I wouldn't rely too much on dictionaries. If you think it's contemptuous of your function, it's contemptuous of your function, and that's the end of the debate.
On the matter of standards, I would think that it would be a higher standard on a minister than a private citizen, because if nothing else, on many occasions members of the House are relying on representations from the member in making their vote and their decisions. It could be legislation; it could be another matter. The minister, of course, is the person in the House who has all the information, so you need to depend on the minister to give you the information.
2:40 p.m.
Liberal
2:45 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you.
Since your time ended at four minutes, and it's four minutes and five seconds, I'll go to Mr. Lukiwski.
2:45 p.m.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Thank you.
Mr. Walsh, just going back again to your comments and your introduction on the Speaker's referral of this issue to committee, you mentioned, I think quite correctly, that the Speaker did not attach any blame whatsoever. In fact, I don't think he ever came close to an admonishment of the minister. He mainly said that he referred this to committee to try to clear the air, to try to clear up the confusion that has been caused.
We've heard through testimony today, direct testimony from the minister and Margaret Biggs, the president of CIDA, answers to all of the questions that appeared to have been causing the confusion: Who put the “not” in the document? Was there any intention of the minister to mislead by referring to the decision having been made by CIDA officials as opposed to CIDA?
The minister's contention, and I say quite rightly, when she said on a continuous basis and on a consistent basis that the decision was made by CIDA, was that as the minister responsible for CIDA, when she makes a decision, it becomes a CIDA decision. I don't think those are points that can be argued.
Obviously, the opposition is trying to suggest that by stating that it was a CIDA decision, it was an intention to mislead, because they interpreted that to mean CIDA officials. I can't help the opposition, frankly, if their interpretation is different from the intention of the minister.
I'm not asking you to really comment on that, but I am asking you to perhaps give a few observations, given all the testimony we've heard today, primarily from the minister and Ms. Biggs, on whether you think the confusion, with respect to those questions the Speaker was referring to that needed to be cleared up, has been addressed adequately.
2:45 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Again, it's like the earlier use of suffisants used by Monsieur Paquette. Now it is “adequately”. This is the judgment you have to make on whether they have been addressed adequately.
To go to your point about the use of terminology, such as “CIDA's decision” or “the department's decision”, that's the parlance for talking about a decision that has been taken with the minister's approval. Typically, it's referred to as a departmental decision or a CIDA decision. That may be the common practice. I don't mean to suggest that it's not. It may be that in answer to question number 106, when the answer refers to “the CIDA decision”, some members took that as indicative that the decision was based not only on the minister's approval or the minister's input but on CIDA's input. I can't answer for how members might have read that.
I don't think one should, however, allow this way of talking--“CIDA decision, departmental decision”--to be used as a shield to obscure the distinction between a decision taken or a recommendation coming from the professional level, the departmental level, and the ministerial decision, which is political. There is an important distinction there.
I think members give weight to whether a decision of the government is supported by the professionals whose careers are engaged in that field. They don't mean to say that it has to be followed, but they're interested to know if it is the case. When it's the case that the ministerial decision is not along the lines of what's recommended, that raises questions, understandably, from parliamentarians, who have a great respect for public servants and for departments of government.
The onus, then, is on the minister to explain why the minister did not follow the recommendation of the officials, keeping in mind that it is not the case that parliamentarians would know that a decision of the government was not in step with departmental officials. Arguably, parliamentarians have no right to know that, because the only ones accountable to the House are the ministers. They're the ones who make the decisions. If they decide they're not going to fund, they have to account for that. They can't either blame their officials for making the wrong recommendation or say, “Well, I did that because the officials told me I should do that.” They're responsible. They're accountable.
2:45 p.m.
Conservative
2:45 p.m.
Bloc
Mario Laframboise Bloc Argenteuil—Papineau—Mirabel, QC
Thank you, Mr. Chair.
Mr. Walsh, I am going to take a moment to read part of the ruling made by Speaker Milliken on March 9. Surely, you had a hand in it. You must have advised or counselled him on it. The Speaker said the following:
On February 14, 2011, the Minister of International Cooperation made a statement in the House to clarify matters related to the funding application for KAIROS. While acknowledging that the way in which this case has been handled was unfortunate, she asserted that she had neither intentionally nor knowingly misled the House or the committee. She also stated that: If some were led to conclude that my language implied that the department and I were of one mind on this application, then I apologize.
The Speaker said it was true that she had never acknowledged being guilty of anything, but she did apologize for something that was misinterpreted. That is perfectly clear, and I think everyone recognizes that. The Speaker went on to say that he relied on a ruling made by the Speaker of the House in 1978. He then made the following comment:
It is with this principle in mind that I have taken great care to study the evidence in view of the very serious allegations regarding the conduct of a minister, who as a result has been subjected to harsh and public criticism [...].
There is something very important to keep in mind here, and my colleague Mr. Paquette has been pointing it out all day: it is not just the Bloc Québécois that is calling for the minister to step down. Editorial writers and other members of the press are also calling for her resignation. It is not a trivial matter when you try to attribute a political decision made by the Conservative government to CIDA.
That led to Professor Franks saying that, in his opinion, it was clear that the minister had admitted to misleading the House. After reading the Speaker's ruling and in light of the statement made by the minister on February 14, he believes that, regardless, she had admitted to misleading the House. I asked him if he found it unreasonable to go as far as raising the question of contempt of Parliament. His answer was that there were two sides to the issue. With respect to the political decision, he said it would be unreasonable. We all agree on that. She did indeed have the right, politically speaking, to say that she and the Conservative Party were against the idea. The other side of the issue, however, is the attempt to attribute that decision to CIDA. I understood you perfectly, and you said that it was not a matter of deciding how important the word “not” was. True, at the end of the day, what we, as parliamentarians, must try to figure out is whether we believe the minister when she says that she does not know what happened. However, all of her actions for over a year now lead us to believe that there was indeed an attempt to make us think that the decision was not one made freely by the Conservative Party but, rather, that it came from CIDA. Obviously, on that point, Mr. Franks said that there was a clear contempt of Parliament, in his view.
To a certain extent, you are telling us the same thing. No, you did not say that it constituted a contempt of Parliament, but you told us to weigh the evidence carefully and to be sure of our position before we go as far as to decide that there was a contempt of Parliament.
It is important to get the facts, and that is why it was important for me to hear what Professor Franks had to say. He is an expert, a professor emeritus, and above all, he does not have a political agenda. He simply pointed out that we were on a slippery slope and that an offence was committed. According to him, the minister did mislead the House, and part of what happened constitutes a contempt of Parliament.
I would just like you to confirm once again whether it would be unreasonable to go as far as to decide that a contempt of Parliament did occur.
2:50 p.m.
Conservative
The Chair Conservative Joe Preston
Monsieur Laframboise, you've really left no time.
But I'll give you a quick answer, Mr. Walsh.
2:50 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
My answer is the same as before: it is not for me to make a judgment on contempt. That is up to you.
2:50 p.m.
Conservative
The Chair Conservative Joe Preston
Thank you very much.
Mr. Martin is not going to take this round, so we'll do one one-minute....
Mr. Proulx.