Public Accounts Committee on Feb. 7th, 2007

[The Chair, Liberal, Shawn Murphy]

I'd like to call the meeting to order, and I want to welcome everyone here.

This meeting is called pursuant to the Standing Orders.

The first item of business, members, is a study on the report on discrepancies in the testimonies of certain individuals who appeared both before this committee and subsequently before the Gomery commission.

We are joined by legislative counsels Rob Walsh and Greg Tardi. I think they're very familiar with all members of the committee. They have been before the committee before. I want to welcome Mr. Walsh and Mr. Tardi.

Thank you for your assistance in this matter.

I will give a little background, if I may. Some members were not involved back when this originated. I guess it has its origins in 2004, or probably before that.

The issue was to consider discrepancies in the testimony of certain witnesses who appeared before this committee on the sponsorship hearings and those same witnesses who gave subsequent testimony before Mr. Justice Gomery. Certain members had concerns about what appeared to be apparent discrepancies, and we have to bear in mind that we were basing our concerns on what we heard before this committee and what we were reading in the media. Anyone involved in politics knows that sometimes the reports in the media are accurate and sometimes they're not accurate. So we wanted to probe the matter a little further to see if there were actual discrepancies.

On October 4, 2005, this committee passed a motion. I will, for the record, read the motion. It said:

—that the committee request the Library of Parliament to draft a comparative report on discrepancies in the testimony of those individuals who appeared before both the committee's hearings on the November 2003 Report of the Auditor General and the Gomery commission.

And there is also the testimony of Charles Guité on July 9, 2002, meeting number 64 of the first session of the 37th Parliament.

That basically instructed the clerk to ask the Library of Parliament to do this comparative analysis so that we were no longer relying on media reports. The Library of Parliament, through the leadership of Mr. Walsh and Mr. Tardi, have done that comparative analysis. There has been a summary circulated to all members, and I want to have a discussion on that.

I am going to turn it over to either Mr. Walsh or Mr. Tardi for their comments.

Before we do that, in a situation like this, it's certainly my advice that we're looking for materiality. There are always going to be certain discrepancies based upon the way the questions were asked. Other relevant issues—they have to be material. The discrepancies have to be deliberate. They have to be contradictory or deliberately incomplete. If we decide that those tests are met, then we would be seeking the direction and advice of legislative counsel as to our next steps.

Mr. Walsh and Mr. Tardi, the floor is yours, but just before you go ahead, Mr. Williams has a comment.

[John Williams, Conservative, Edmonton—St. Albert, AB]

I am looking through the information provided by the parliamentary information and research service that we quite often get before a meeting, but this seems to be quite a succinct summary of what exactly was transpiring, including some comments by the witnesses and so on.

Would it be appropriate, in this case, to append it to the minutes of this meeting?

[The Chair, Liberal, Shawn Murphy]

I'd prefer to listen to Mr. Walsh first. I believe, Mr. Williams, his recommendation is that he wants to talk about the broad brushes as to where we go, and then he would prefer to go in camera to talk about the specifics.

[John Williams, Conservative, Edmonton—St. Albert, AB]

Okay.

[The Chair, Liberal, Shawn Murphy]

I think that's the way I would like to handle it.

Mr. Walsh or Mr. Tardi, who wants to lead off?

[Rob Walsh, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chairman.

I am pleased to be once again before the public accounts committee. It has been a while, in my case, as law clerk and parliamentary counsel.

I have with me the senior parliamentary counsel, legal services, Greg Tardi, who has been working with Brian O'Neal of the Library of Parliament research branch, who is here today, of course, on the staff of the committee in reviewing the testimony given to the committee in the 37th Parliament.

I believe their report is what Mr. Williams was referring to a moment ago, where there is a chart setting out what are identified as possible discrepancies between what was said to this committee and what was later said to the sponsorship inquiry of Mr. Justice Gomery.

Let me first say, and I feel I want very much to say that at a certain personal level, given my experience not only with this committee in the sponsorship inquiry but also the government operations committee in the matter pertaining to the privacy commissioner and on other occasions as well, I think it is very important that committees take their role seriously and expect of witnesses that they testify fully as to the facts within their knowledge and be truthful, and it is regrettable, in my judgment, that it is too often the case that something less than that is offered by witnesses, particularly those who are knowledgeable about committees and the dynamics of committees. They in many cases understand how to appear before committees and perhaps to minimize their disclosures to the committee because of that very dynamic, which they are knowledgeable about.

I have explained to members of committees and chairs from time to time that witnesses are obliged to not simply speak truthfully but to give the whole truth and everything within their knowledge, and also not to wait for the right question but to actually give the information they know is relevant to the matter before the committee, without waiting for the right question or looking for opportunities to avoid giving full answers to the committee.

Regrettably, in the sponsorship inquiry, as in other cases as well, there were times when there were witnesses who didn't seem able to recall fully the matters that you would expect to have been within their direct knowledge, and yet later, in front of the commission of inquiry, their recollections seemed in some respects to be more complete and more attentive to detail.

First, I want to commend the committee for taking this up, because I think it's an important issue if committees are to sustain their credibility vis-à-vis the public generally and vis-à-vis their witnesses. They ought to take seriously their obligation of members to speak truthfully and to take seriously any appearance of that not happening.

However, what we're talking about here is perjury. Perjury is a tricky business. First of all, you need to know where the truth lies before you can identify that there has been any perjury. Then you need to show that the person you think has been perjurious knows what the truth is or knew what the truth was and chose to say something else, or chose to give only part of the truth and knowingly held back part of the truth, and knew or ought to have known that the committee would be misled by not having the full truth.

This, as legal charges go, so to speak, is one of the more difficult ones, because it's all in the mind of the accused as to what he did or did not know and what he did or did not intend by his answer. In many other criminal offences, there is the actual deed that is the criminal offence, and then there is the question of whether the person intended to do what quite evidently he did do. To some extent it is quite evident, in most cases, that obviously the person intended to do what they did, but in perjury, it is very subjective and it is very hard to prove it. I warn you that while I commend you for pursuing this question, it nonetheless, legally speaking, is a very difficult matter to establish.

There are basically two routes available, the legal charge of perjury versus a report to the House with a recommendation of a citation for contempt for misleading the committee. They're quite different.

As I said, Mr. Tardi has worked on this with Mr. O'Neal. I would ask Mr. Tardi, if you would permit, Mr. Chair, to summarize in greater detail the legal requirements on perjury and what we find in the testimony.

Just before he begins, let me assure you that in my own review of the material as we have it from the Library of Parliament, there are discrepancies. There's no question, there are discrepancies, and with regard to some witnesses, the discrepancies beg for an explanation, but is it perjury? Is it, in the first instance, a false answer knowingly given as a false answer by the witness? Is the discrepancy explained at a later date by a memory improvement in a bona fide fashion and a more extensive answer is provided? These things can happen. You know, Mr. Chairman, as a lawyer yourself, that people's memories can improve over time once they are implicated in the whole matter and brought to refreshing their memory. More information comes back to them. Details can return.

When they were before this committee at the earlier part of the process, at that point some of those details may not have come to them. That's a forgiving view on these discrepancies. You can be more cynical and say “I don't buy it. They knew what they were saying in the first instance and they knew what they were saying in the second instance, and they ought to be held accountable.” That's a decision for the committee.

I would only suggest, before Mr. Tardi starts, that if you get down to looking at the particulars of who said what and when and where, and who ought to have said more and who ought to have said something differently, you're getting into some very sensitive issues relative to the particular individuals, and you might find it's something you'd discuss more effectively in an in camera meeting. Not only would you have a better discussion among yourselves as to who you think was deceiving the committee, but you also would be avoiding a disagreeable situation: if that discussion were held in public and you had the intention of calling some of these witnesses before the committee to explain themselves, you would have signalled your concerns in full detail to those witnesses, and they could, of course, if they are deceiving persons, prepare themselves to deceive the committee once again. You don't want to sit around and talk in public about how you found some witnesses to be deceiving you. I think you'd want to address that in your own minds in private, with specific reference to specific witnesses. Short of that, there might be a helpful discussion we can offer you today relative to the legal requirements as they relate to perjury or contempt.

Mr. Chairman, if there's no objection on your part, I would ask Mr. Tardi if he wants to brief the committee.

[The Chair, Liberal, Shawn Murphy]

Please go ahead, Mr. Tardi.

[Gregory Tardi, Senior Parliamentary Counsel (Legal), House of Commons]

Merci, monsieur le président.

I'd like to start with two very preliminary comments.

You kindly mentioned my role in the background preparation of this document. In fact, I worked very closely with Mr. O'Neal of the library on this; essentially I took the work that had been prepared under his tutelage and worked with that. I did not draft this particular document. That's the first matter.

The second is to set the parameters of this discussion. What we're looking at today and what is being compared in this document prepared by the library are the testimonies given before the public accounts committee during the 37th Parliament and before the Gomery inquiry. In fact, I want to signal to the committee that there is more, in the sense that there were several court actions—in particular the criminal prosecution of Mr. Guité—in which testimony was also given, so in that sense this document is perhaps the entire encyclopedia of what was said on this issue.

That being said, with your permission, what I should do is to set out the different avenues that the committee may wish to pursue. I'd like to start with the one that comes most readily to mind, which is the issue of perjury, as Mr. Walsh said.

So that's false testimony.

Of all the possible options, this is probably the one where the path is perhaps a little bit tortuous.

We start off with section 12 of the Parliament of Canada Act, which says “Any person examined under this Part who wilfully gives false evidence is liable to such punishment as may be imposed for perjury.” My colleagues and I in legal services interpret this provision as being a door opening onto the Criminal Code, where perjury is defined and where the specific criteria required for a charge and a conviction of perjury are set out.

Rather than read the Criminal Code provision, what I'd like to do is give you a logical sequence of the criteria required for a charge and eventually a conviction of perjury.

The first one is that a false statement has to have been made.

The second is that the statement was made under oath or solemn affirmation. The significance of that is that in order to start proceedings for perjury, we would have to go back—Mr. O'Neal, perhaps, and myself—throughout the testimony given before the public accounts committee in the 37th Parliament to see who was sworn in and who was not.

The third criterion is that the testimony should have been given before a person authorized by law to permit the statement to be made before him. That of course is the committee and the previous chair, and that certainly does apply.

The fourth criterion is that there be knowledge that the statement made is false—knowledge on the part of the witness, of course—and finally, that the witness have intent to mislead the person or body to whom the testimony is being given.

There is one other criterion that's of significance to this recounting. That is that the relevant provision of the Criminal Code assimilates affidavits and declarations and depositions to false statements, so in whatever manner the statement is made or the testimony is given comes under the provision of the Criminal Code.

For the information of the committee, I'd like to point out that in case a charge of perjury under the Criminal Code is made and substantiated and in case there is a conviction, the maximum punishment is 14 years in prison. So we're talking about a serious matter here.

The next step along the path is, if this is the avenue that the committee decides to pursue, what are the steps along the way? Considering that neither the committee itself nor Parliament is a prosecutorial body, we have to refer to section 92.14 of the Constitution Act of 1867 and hand the matter over to the appropriate provincial attorney general. In most likelihood, that would be the Attorney General of Ontario. The Ministry of the Attorney General Act of the Province of Ontario has all the parameters to enable the AG to undertake a prosecution if that's what is decided.

However, once the committee or the House decides to hand over the file and to request that perjury proceedings be commenced, the Attorney General's prosecutorial discretion comes into play. In a sense, whatever the wish of the committee or the House, it's the objective or subjective assessment of the Attorney General that comes into play and the criteria the Attorney General would apply in deciding whether to prosecute or not: the seriousness of the offence, the availability of evidence, the importance of this particular prosecution vis-à-vis other potential prosecutions, a reasonable chance of conviction, and ultimately the public interest at large.

So this is not an easy matter to undertake. Rest assured that the other steps along the path are perhaps a little bit easier to pursue, and with the committee's permission, I'd like to enumerate them as well.

It's always open to the committee to decide completely outside the parameters of section 12 of the Parliament of Canada Act that it can deem what appears to be untrue testimony to be a contempt of Parliament. The way to use that idea is that the committee can then report to the House that it believes XY has committed contempt of Parliament, and then ask the House to undertake contempt proceedings.

Perhaps a less severe variation on that would be for the committee simply to write a report to the House pointing out that it thinks discrepancies have appeared in the testimony of one or more individuals. Similarly, the committee can, if that is its wish, bring back witnesses for further questioning, or the committee can simply write to the witnesses and ask them to clarify their testimony or to clarify the differences between various testimonies they gave.

Finally, perhaps the two simplest and quickest ways of dealing with this issue are, first of all, to take this document that's been prepared by the library and to render it public, and perhaps distribute it with explanations or comment. Finally, of course, the last avenue open to the committee is to determine, perhaps in the next hour, that it will move on to other business.

So in a sense, those are the options that I see open before you. Of course, I'm ready to answer whatever questions you may have.

[The Chair, Liberal, Shawn Murphy]

Mr. Christopherson.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Mr. Chair. And for your wisdom of having me hold off the first question I had, to get it answered, thank you.

The second one is more a comment. When I read through the report I was surprised that we were perhaps going to engage in some discussion publicly, because the whole essence of our discussion is whether there are discrepancies and what we believe the motivation of the person giving the answers was. Were they trying to hide? Were they trying to withhold? If we're going to make those kinds of accusations, have a conversation amongst ourselves.

Whether anybody's done anything wrong or not, that'll be dealt with elsewhere. They still have rights as Canadian citizens, and we ought not to be bantering around somebody's reputation here in a public domain until such time as we're prepared to back it up with action and a reference to the broader House, if that's where we're at. So as much as I'm always reluctant to go in camera, I think this is one of those times when we're serving the public well by doing that.

Thank you.

[The Chair, Liberal, Shawn Murphy]

Yes, I agree, Mr. Christopherson. Should we get into specific details in our deliberations as to what course we're going to take, I think we actually should have those discussions in camera.

But the purpose of this session right now is to get the broad brush—

[David Christopherson, NDP, Hamilton Centre, ON]

Procedure, yes.

[The Chair, Liberal, Shawn Murphy]

—from the counsel, and I think that's more appropriate in a public meeting.

I have a couple of questions, Mr. Tardi or Mr. Walsh, whoever wants to answer them. You've identified two basic procedures—well, there were basically three or four, including just to do nothing. But one would be a reference to the Office of the Attorney General or the Director of Public Prosecutions of the Province of Ontario, and of course you laid out the tests, which—At that point in time, it's outside our hands; it's his or her office.

But then the other test is to make a report to the House, with the possibility that the person be found in contempt of the House. In terms of the test for perjury, are we talking about the legal test of whether or not perjury has been committed? Is the test the same?

[Rob Walsh]

Mr. Chair, the simple answer to that, without being simplistic, is the old adage about beauty is in the beholder. Perjury is what the House considers in its judgment to be perjury.

Having said that, it would want its judgment to be respected, so it ought to adhere to conventional understandings of what perjury is, without necessarily addressing all the legal tests that are required in a court of law for a criminal conviction. Nonetheless, the House ought to adhere to the fundamental principles, mainly that the person failed to tell the truth to the committee when he or she was able to do so and, perhaps for reasons the committee can't explain, didn't do so.

That is the gist of any recommendation to the House that I think this committee would make. This person didn't speak truthfully to this committee when he or she could have done so, and as a result the committee was deprived of the fullness of the information that it ought to have had. You may also then recommend—or you may not—that this person be found in contempt of the House in its proceedings.

But that's the judgment for the House to make as an institution. It's like a court. It's able to defend itself against contempts made upon it in defence of its proceedings. A court can do it; the House of Commons can do it.

For a conviction within the House of Commons, that's for the members of Parliament to determine.

[The Chair, Liberal, Shawn Murphy]

I have a couple of other questions, Mr. Walsh. Contrary to my understanding, you mentioned—or it might have been Mr. Tardi—a distinction concerning whether or not a witness was sworn in before this committee. It is my understanding that a witness who testifies before this committee is deemed to be giving testimony under oath, and that there really isn't much difference whether or not some member asks the witness to be sworn in.

But when you talked, I had the impression that I'm not right in my thinking. Can you explain that further?

[Rob Walsh]

My view is that yes, there is no need for the witness to be swearing on a Bible before he or she gives testimony. They are obliged to speak truthfully to a parliamentary committee.

However, if you walk over and seek remedies under the Criminal Code, then the rules of the Criminal Code may be brought to bear. As Mr. Tardi pointed out, the Criminal Code clearly requires that the person alleged to have been perjurious was giving a statement under a sworn oath.

Now whether the court would accept that there is a legal obligation to speak truthfully to a parliamentary committee and that this applies even in the absence of the swearing of an oath, I can't be sure. But the Criminal Code seems to require the swearing of an oath for any charge of perjury to be laid against someone regarding a false statement.

[The Chair, Liberal, Shawn Murphy]

But if your statement is correct, would it not be wise for every committee of the House to have every witness sworn in? If what you're saying is correct and the argument has merit, then there might be a possibility that we would never be successful in seeking a criminal court perjury charge.

[Rob Walsh]

Let me offer this in that regard. Technically and logically speaking, you're quite right. If you ever want to prosecute under the Criminal Code, perhaps that has to be there.

But go to the dynamics of each meeting. I can remember many meetings where if the witness was already very nervous and apprehensive about the event and you then put a Bible in front of them—this might be enough to put them over the edge in some cases.

But you have to ask yourself, what are the realistic prospects that you're ever going to seek a criminal prosecution for perjury? My view is in 99% of the cases where there might be a basis for false testimony, you're going to report to the House and go that route, as opposed to asking the Attorney General to use his or her discretion to prosecute and perhaps involve members of the committee as witnesses in a criminal prosecution. I don't see that.

So my short answer, Mr. Chair, is yes, you should swear in every witness, just in case you get one person against whom you want to lay charges for perjury. But weigh this against the formalism it would bring into the process.

In parliamentary terms, common law terms, every witness is obliged to speak the truth and all the truth to a parliamentary committee, failing which the House can hold them in contempt. The House has its own remedies for this, although it has rarely happened.

[The Chair, Liberal, Shawn Murphy]

Mr. Walsh, as my last question, in the history of this institution, I don't recall an instance when we had an issue of a perjury report to Parliament. When was the most recent one?

[Rob Walsh]

I don't recall that there was one.

Frankly, the idea of a perjury prosecution or a holding for contempt in the House is like hanging a dead person, if you'll pardon the expression or the metaphor. By that point, with the damage done to the individual from the scrutiny given to his or her testimony, comments by the committee, a report to the House, and the House perhaps concurring in the report, what's left to be done with regard to that person?

In formal terms, yes, the House could well undertake a motion of contempt and go through the step of, in theory, imprisoning the person for some period of time, until the end of the session, but I think we'd all acknowledge that's getting a little far fetched. I really think committees ought to show themselves to be ready to respond in terms of calling upon witnesses to explain themselves when there are discrepancies in testimony.

Mr. Chair, in view of the recent passing of Bill C-2, I think many members would agree that we now have a regime where there's greater accountability on the part of public government officials to Parliament.

It may well be that in keeping with that, a report by this committee to the House could say here's an example where there was not sufficient accounting, with specific reference to testimony that might be incomplete or evasive in some cases. It may be that a useful role the committee can play now is to give a sample of bad accounting, if you like, to a parliamentary committee, by reference to a particular piece of evidence, without looking to nail anyone to a cross in particular.

It could be an example where we studied the testimony and, in our view, the committee was not spoken to truthfully or as truthfully as it should have been. In the future, the committee would expect the witnesses would govern themselves accordingly.

[The Chair, Liberal, Shawn Murphy]

It's a remedy available to us, to report that.

Mr. Williams.

[John Williams, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chairman.

This could be the first time the Parliament of Canada has ever dealt with an issue of perjury such as this.

[Rob Walsh]

I can only say, Mr. Williams, I'm not aware of it going the full distance, where someone has actually been taken before the bar and found in contempt. There may have been debates like we're having now in Parliament, on a number of occasions, about some witnesses. But I'm not aware of it actually getting to where someone is summoned in front of the bar in the House for contempt.

[John Williams, Conservative, Edmonton—St. Albert, AB]

Like the other members, I'm apprehensive about doing our business in private. These are public statements that anybody can determine. They were made before this committee and televised across the country. They were made before the Gomery commission and televised across the country. We're not dealing with some secret information that can't be made public, Mr. Chairman.

As Mr. Walsh has pointed out, while we may not be able to go all the way to a successful prosecution, the very fact that we have debated the statements here in public may be a serious warning to others who value their reputation that they should be more careful when there appear to be discrepancies.

I'm not sure we should do this in private, Mr. Chair, for that particular reason.

The bar is very high for us to report to Parliament, for Parliament to concur, for the prosecutor to concur and go to trial, and for the judge to concur, before you ever have any sanction. The only sanction would be the public notoriety of having your name on this particular issue. Since these statements were made voluntarily in public and televised, I think we should do it in public.

[The Chair, Liberal, Shawn Murphy]

Is there a response?