Public Accounts Committee on Sept. 6th, 2007

[Anne McLellan]

My answer remains the same, Mr. Chair. I'm not going to repeat it here, but will simply say that I clarified for the record last time I was here that the investigation undertaken by the Ottawa police was a criminal investigation. I have not seen anything, nor do I see anything in Mr. Brown's report that would suggest there was anything to raise any reasonable concern that the then commissioner had committed a criminal offence. That's what the Ottawa Police Service investigation was asked to do. My comments were directed entirely to whether or not there were any facts known at the time that would suggest he should be subject to a criminal investigation.

What his management style is, whether he's a nice guy or a bad guy, whether he's arrogant, or whether he's this or that--those are entirely different matters, and there are clearly mechanisms by which one can deal with those. We know what Mr. Brown has concluded in that regard, and I'm sure he'll be making some very positive recommendations in relation to the role of the commissioner with the force.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

You also said before this committee, “I talked about the fact that the Ottawa police force was independent and needed to be allowed to do its work, and that in fact is what it did”.

Mr. Brown, in his report--which you read--says, “...I am prepared to go beyond that and state that the OPS investigation was not independent”. In retrospect, having read more on this matter, do you now believe that perhaps the Ottawa police investigation was not as independent as you first thought?

[Anne McLellan]

I certainly have read Mr. Brown's conclusions in relation to this matter and, of course, the Auditor General's. I do believe that perception is important, but I also would refer the committee to other comments made by Mr. Brown to the effect that he is in no way calling into question either the testimony or the integrity or the conclusions drawn by then police chief Bevan and Inspector Roy, who were both intimately--

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

With due respect, though, Mr. Chair, a point of--

[Anne McLellan]

--involved in that investigation.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

With due respect, that was not my question. Nobody's questioning the integrity of those individuals. We're questioning the independence of the investigation.

You stated before this committee that it was an independent investigation. Since that time, the Brown report and other testimony have contradicted that statement. Would you at this point be willing to concede that perhaps it wasn't an independent enough investigation?

[Anne McLellan]

As I say, I think perception is important. Certainly, as the process was moving forward, for example, I had no knowledge of the fact that Inspector Gork was in fact the liaison officer, as I understand, but that he was mis-described. That could raise the issue of perception in the minds of the public. I think both Brown and the Auditor General talk about that.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Do you think it was independent or wasn't independent?

[Anne McLellan]

No, that's a perception issue.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I'm not asking about perception. I'm asking about reality. From what you know, would you say it was or was not an independent investigation? If you can't comment, you can say so.

[Anne McLellan]

What I will say is this. I respect Mr. Brown's conclusion that he wants the Ontario Police Service to review the work of the Ottawa Police Service. I have no problem with that. I don't question it. I look forward to the Ontario Police Service's review of the matter.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

This is not anywhere near to the question I asked, Chair. If we're not going to get an answer, I'll move on to my next one. My question was very simply whether or not she believed it was an independent investigation. It doesn't seem to be the question that she's answering.

I will make reference to the former chair of the public complaints commission, Shirley Heafey, in reference to a complaint regarding the separate issue of an investigation into the Department of Agriculture in Sussex. She complained about the refusal of Mr. Zaccardelli to refer the matter to the Crown, as had been recommended by her commission.

She also said that it was not out of the ordinary. She said, “It's not out of the ordinary”, and she's referring to Mr. Zaccardelli's refusal to refer this to the Crown:

When it was something contentious then I would go public with it. There were often great big gaps in the logic of his responses and there was no support from the [federal Liberal cabinet] minister responsible in those days.

She was referring to you.

You exonerated Mr. Zaccardelli prior to a criminal investigation, you supported him throughout, and today you've not even renounced his conduct throughout this. Is it possible that perhaps you were too unquestioning in your support of him as the commissioner while all of this was going on under your nose?

[Anne McLellan]

You should actually put that question to Commissioner Zaccardelli. Based on some of our discussions, he would probably find it fairly amusing. We've had fairly aggressive engagements on a wide range of matters involving budgets and other kinds of things in terms of requests for additional resources and so on.

My very clear answer to that is no, I was in fact never involved with the operational matters of the force. In fact, once any minister starts to do that, you have a Stalinist state. I've said that before, and I've gone on record saying it. In fact, Mr. Kennedy has alluded to the importance in our system of government in terms of the political arm of government not involving itself in the operational issues of the RCMP.

I'm not going to comment on the relationship of the commissioner with Madam Heafey. I certainly heard from both of them as to what they thought the relationship was about. It was not an easy relationship. I think she has made it plain. He has probably made it plain.

The public complaints commission is independent of the Minister of Public Safety.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Do I have any time left?

[The Chair, Liberal, Shawn Murphy]

You may ask one more short question.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

All of this happened under the watch of the former Liberal government, much of it while you were minister. Without indicting yourself for any of the activity...nobody has accused you of having been involved in any of it, but you were the minister, and ministers are responsible.

Mr. Chrétien has apologized in relation to the sponsorship scandal, even though he says he wasn't involved in it. Mr. Martin did the same. Would you be willing to apologize on behalf of the government that you represented for what went on during the time you were the minister? It's not because you were involved in it; it's because you were the minister and you were therefore responsible for what went on under your portfolio when you held it.

[Anne McLellan]

First of all, keep in mind that when I became minister there had already been an internal audit, and the management plan had already been put in place to deal with the aspects of irregularity that had been identified through the audit. I think the Auditor General basically said the management plan was appropriate, and it has been acted on. At this point, I don't know whether or not all the matters identified in that management plan have been concluded. In fact, when I left and the government left, the processes that we are discussing here were still in play. As I've said before, you have to let the processes play out so that you find out what happened, who was responsible, and what action should be taken.

It's why there was therefore a criminal investigation. There were internal investigations following that. Unfortunately, after we left government, we learned from the Federal Court that the legal interpretation that had been placed on the limitation period by the RCMP and others was not ultimately found to be correct by the Federal Court.

You let the process evolve. When things happen that shouldn't happen, you hope that you have the processes in place and the managers in place to deal with them fairly and in a timely fashion. I believe the processes continue. You are part of that process, and Mr. Brown is part of that process. At the end of this process, I hope we will know who did what, when, and why. If there were gaps, such as letting the limitation period expire, then those are things that have to be fixed for the future.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Ms. McLellan.

Mr. Christopherson, eight minutes.

[David Christopherson, NDP, Hamilton Centre, ON]

Thank you, Chair, and thank you all very much for attending today.

Mr. Kennedy, I had a chance to attend your speech at the National Press Club in May, and I was very impressed. It was very insightful and it was very powerful. I hope the committee tracks along a number of the recommendations that you've made so we can add some oomph to it, because I think the courses you've outlined would be very healthy for all concerned.

Given the fact that Al Capone was ultimately brought down by accountants, and not the G-men, and given the fact that this issue actually saw the light of day through the auditors and then ultimately the public accounts committee, and given the fact that in May 2005 the Deputy Minister of Public Safety wrote to Ron Lewis suggesting that he take his concerns with any aspect of the code of conduct to the CPC, my question to you, sir, would be this. Had Mr. Lewis done that, and I'm not sure whether he did or not, but if he did, what would have happened?

Also, I note that you mention that you don't have a lot of the powers that other review bodies do. You don't have the right to subpoena, you don't have the right to put people under oath. You were tied much the same as Mr. Brown was in terms of not having those tools.

So the first question would be, if he'd come to you under the current circumstances, where would we be today? Would it be any different? Would it be any better? Would justice have been more appropriately served?

Secondly, given the number of well-thought-out recommendations you've made, if those changes were in place and Mr. Lewis had come to you with these circumstances, how then could things have unfolded in a way again that would serve everybody involved better?

[Paul E. Kennedy]

If he had come in May 2005, he wouldn't have come to me; he would have come to my predecessor. I started in October 2005.

I checked before coming over to see if anyone ever did file a complaint with us, and my complaints intake group indicated they had no complaints filed with us with reference to this particular subject matter. So I stand to be corrected, but I was advised that this morning.

In terms of process, the legislation says that anyone can complain about any conduct of a member or a civilian member of the RCMP in the conduct of their duties.

There are a number of questions one would have to ask, because some of the people who played out in the Brown report were not, I don't think, members or civilian members of the RCMP; they were public servants. In that case, some of them would have fallen outside the ambit of what we're looking at.

Clearly, what would have been within our purview, even under the existing legislation, is the criminal investigation. In other words, once it got by the internal audit and there was a decision to do a criminal investigation, whether or not it unfolded and whether or not the investigation that unfolded was actually independent is something we could have looked at—an allegation of systemic cover-up, or something like that. That's where we would have gone in.

I really don't see us as being the most appropriate body to look at the issue of the transfer of funds from the insurance account to the pensions account. I think the Auditor General was very well suited for that. But when you look at the totality of what was examined, there are clearly areas of overlap between what she did look at and what we could have looked at. We could have looked at the criminal aspect.

The process, clearly.... I have advanced the legislative model that has been shared with the folks here, and it is one for which I anticipated a whole series of issues that would come up that would broaden the scope. I had said, broaden it out to capture not only people currently working but people who are retired, because you can dodge the bullet by retiring before a complaint is filed.

There's no provision for the minister to ask that a special inquiry or a special report be done. I'd put into the legislation that a minister, if he had a concern, could say, “Could you look at this?”, which would take you outside of the normal stream you'd look at, but you would have all the powers that I've suggested here. That is, short of calling a public interest hearing, you can go and investigate, people would be obliged to talk to you, you could take testimony under oath, and you could compel documents. And all the concerns that this committee raised vis-à-vis Mr. Brown would be addressed, because in that legislation I'd put in a series of offences. It would be an offence to obstruct the work of the committee; it would be an offence to destroy any documents. All those things would have been taken care of.

So yes, the new model would have been far better in terms of addressing the concerns. We would have been half the solution but not the whole solution if someone had come to us. We would not necessarily have looked at the behaviour in terms of whether or not he was.... I think of Chief Superintendent Macaulay going to National Defence. That, on its face, doesn't show out in terms of that punishment transfer, as it was described. It would show up possibly as an auxiliary issue if there were any connection with the criminal investigation.

We ourselves are currently wrestling with the issue of the impartiality of the police investigating the police. We've put a pilot project in place in British Columbia, where the RCMP does 70% of the policing, and we've actually articulated criteria we would put in place to assess the impartiality of the police investigating the police.

It's quite clear that the incident that occurred here—and I concur with the assessment of the Auditor General—certainly didn't have the appearance of impartiality. They are very professional people, but you're beyond that. People have to look at it; it has to stand, as they call it, the smell test. You don't have to fall back and justify people's credibility. It looks independent, looks impartial. That's where it fell down, obviously, with most of the officers being members of the force.

There's a two-edged sword, though, with that particular investigation. I think an officer has to be impartial, and it's hard to be impartial when you're investigating what you believe is a potential fraud against your own insurance or pension scheme. That's why it's always best to have someone outside who is acting as a police officer and not acting as an employee of an organization.

There were a number of flaws, I think, that hurt the impartiality of that investigation.

[David Christopherson, NDP, Hamilton Centre, ON]

Thanks.

That raises a couple of things. You don't have to comment on this if you don't want to; I'm just going to throw it out there.

Earlier the ethics advisor.... I raised that whole issue about their being part of the structure and whether that causes any problems. I don't know if you heard any of that. Do you have any thoughts on it? I was pretty much dismissed, from her point of view and that of her predecessor, in the sense that, no, it's not the case, that the integrity of the individual is enough, and structurally you ought not to worry. And yet you just talked about a very similar issue where you identified the need for that arm's length.

Do you have any thoughts or comments? And I'll accept no.

[Paul E. Kennedy]

No, I don't believe these things are mutually exclusive. Every structure has a person within the organization who is trusted, to whom someone can go who has a concern about an ethical issue, a conflict of interest, or something like that, because ADR, alternative dispute resolution, and things like that are preferable, depending on what the issue is--an independent voice, as long as the person has some moral character and fibre and is prepared to discharge the job, and is allowed to do it. But this isn't a case of either/or. You also have to have something whereby someone stands independently. My career path is not dependent upon the commissioner's good grace or anything else; I'm here for a term, and then they replace me with someone else. It's always refreshed.

I think what you're looking at is an array of things—the toolbox that they talk about. You have that as a step. You don't want to formalize everything, but you have to have a formal structure where you can come in and say, “I'm looking at this. Here are my recommendations. And they're not going to be in-house; I'm going public with this.” In some of my reports—in the appropriate case—I go public, because there has to be a bit of a shaming and naming process to it.

[David Christopherson, NDP, Hamilton Centre, ON]

Do I have a couple of minutes, or am I done? Really short.

Let me just make a statement, then. I think you do a great job, by the way. I'm very impressed with the work you do, sir.

Let me just say that I agree with you entirely on this. Nobody in this room has more respect for the OPP than I do; I am a former civilian head of the OPP. But it still troubles me that we're in a situation where we call on one group of police officers to investigate another group of police officers. You know, there is that camaraderie. We have trouble separating those things out when we deal with each other as politicians. I think that's just human nature. In Ontario, we have the SIU, an independent body, if a civilian is hurt. I think it serves us very well, and I think it serves police well.

So I do hope there's room for us to look at that too, Chair, because going from the Ottawa Police Service to the OPP, on its surface, really shouldn't be that great a move, because the Ottawa Police Service, I'll say, is as honourable as the OPP when you look at it as a base service. But clearly there was a problem with the one.

What is there to satisfy the public that there won't be the same problem with the OPP? Again, I emphasize that I say this as someone who has the deepest respect for the OPP and the work they do.

Thanks, Chair.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Christopherson.

Ms. Jennings, eight minutes, please.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair.

Thank you, all of you, for your presentations and your frank responses to all of the questions that have been asked.

Mr. Kennedy, I have to say that I agree with Mr. Christopherson when he says that you've been doing an excellent job.

And I have to commend Ms. McLellan for the appointment of Mr. Kennedy. So you made an excellent decision on behalf of the former government.