Public Safety Committee on Aug. 16th, 2022

[Christine Normandin, Bloc, Saint-Jean, QC]

Thank you very much, Madam Chair.

Mr. Daigle and Mr. Rees, thank you for joining us today.

Mr. Daigle, I would like to start with a question about your letter of August 12. The letter describes the mechanism for producing documents at the Mass Casualty Commission, or MCC, the reasons for redaction and the redaction process. However, it does not describe the document analysis process, which is precisely what we are interested in.

We are interested in the fact that the four pages were withheld, not in the fact that they were redacted, since they were not. I am curious as to why your letter does not address the process related to the documents being analyzed for potential redaction.

[François Daigle]

I'm not sure I understand the meaning of the question.

We received documents from seven departments, including the RCMP. We usually received them electronically. They are entered into our document management system and grouped by category.

One of the categories related to requests from RCMP officers. There were approximately 2,414 pages in that category. We have looked at all of those documents.

During the process, we noted that some passages in those notes raised potential privilege issues we needed to analyze. Since the commission needed those documents as soon as possible, we decided to send some 2,400 pages to it immediately and to continue reviewing the remaining 35 pages.

Our lawyers and paralegals had the 35 pages in question, and they consulted colleagues about them before determining whether or not those documents were privileged. If they were not, we could disclose them to the commission. If they were privileged, partially or totally, we would redact those portions.

[Christine Normandin, Bloc, Saint-Jean, QC]

I am with you on that, but it is the withholding of those documents while they are under review that interests me.

As I understand it, you started analyzing these 35 pages in January and February 2022. They were produced to the MCC on May 30, 2022. So it took about three months for the documents to be submitted to the MCC, since you were analyzing them.

Is that correct?

[François Daigle]

That is correct.

We were not twiddling our thumbs during that time. We had other documents to analyze. The commission's priority at that time was the investigation files.

It was when we started preparing for the RCMP hearings that the commission told us that these documents were urgent. So we rushed and gave them the documents we could. It took about three months to review the remaining 35 pages.

[Christine Normandin, Bloc, Saint-Jean, QC]

I certainly wasn't accusing you of being lazy.

During those three months of analysis, I assume that you were providing updates to some officials in the Department of Justice, so that they would know how the analysis was progressing, whether there were any privileges to be respected and whether there was any case law. Surely, something was going on.

In that context, no one brought up the fact that the MCC was not aware that there were 35 pages missing from the submitted documents.

Is that right?

[François Daigle]

As soon as we sent the approximately 2,400 pages to the commission, we should have notified it that we were withholding another 35 pages that were still under review. We did not, and that is what raised questions.

We have exchanged letters with Mr. Cromwell of the commission to explain ourselves. We have agreed on a process to ensure that the commission would be made aware if we were to withhold relevant documents because they are in the review process.

[Christine Normandin, Bloc, Saint-Jean, QC]

That's great.

So it was upon receipt of these documents, on May 30, that the commission realized that 35 pages were missing. During the three months of analysis, it did not know that pages were missing.

Did I understand correctly?

[François Daigle]

The commission was not aware that we were withholding an additional 35 pages that we felt were relevant.

It was not until June 22 that Mr. Cromwell wrote us after hearing that four pages were missing. We then met with commission officials to explain what had happened.

[Christine Normandin, Bloc, Saint-Jean, QC]

In your letter of August 12, you reiterate that a party must disclose documents in its possession that are relevant to the proceedings and are not subject to privilege.

According to that letter, you began gathering documents for the commission around November 2020, right after the commission was created by order in council on October 21.

What is the process for document collection and production?

Do you automatically turn over certain documents to the commission or do they have to be subpoenaed before they are produced?

[François Daigle]

I will ask my colleague Mr. Rees to explain the process.

[Owen Rees]

After gathering the documents, Department of Justice attorneys and paralegals review them for relevance.

We began sending the documents to the commission in February 2021, before the subpoenas were sent. This is a process—

[The Vice-Chair, Conservative, Raquel Dancho]

The time is up. Please conclude your sentence.

Thank you.

[Owen Rees]

This is an ongoing process, following a set timeline.

[The Vice-Chair, Conservative, Raquel Dancho]

Thank you, Ms. Normandin.

We will now go to the New Democratic Party.

MP MacGregor, you have six minutes, please.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Madam Chair.

Thank you, Deputy Minister, for appearing before our committee. I'd also like to thank you for the letter you provided to our committee just explaining the process before we held today's meeting.

In your letter, you mentioned the 35 pages that were held back and retained for further review. Those 35 pages actually contained four sets of notes. I think there were some from Superintendent Campbell. There were some from others. Out of the 35 pages, 13 were from Superintendent Campbell's notes that were held back. Out of the 13 pages from Superintendent Campbell, it's the four of his 13 pages that specifically referenced the April 28 teleconference with the commissioner.

What I would like to know from you, Deputy Minister, is this. When your officials were looking at those 13 pages from Superintendent Campbell specifically, were those 13 pages sequential in nature? Were they all written in one sequential line, or were they 13 individual pages that were sort of hand-picked out of the entirety?

[François Daigle]

I'm not exactly sure how they were...but from what I saw, we had the entire books of notes from the RCMP officers from a certain date to a certain date. We identified throughout what was relevant to the commission and, from that, what we thought needed a review for privilege.

As to whether they're sequential, I think they are consequential in the sense that the books start at one date and they go forward. When we get to April 20, there are some notes. When we get to April 28, there are some notes, and so forth. So—

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Just to be clear, you're not aware if the 13 pages that were held back from Superintendent Campbell specifically.... You're not aware if those 13 pages were actually written sequentially in a specific timeline, like a journal entry. You're not clear on that information.

[François Daigle]

[Technical difficulty—Editor] journal entry.

Maybe Owen has had a look at this and can provide more information.

[Owen Rees]

My recollection is that they were in chronological order, as one would take notes in a notebook, and that the four pages were in chronological order in a—

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

You've taken some time to identify the kinds of privilege that might exist for why they're withheld. Would notes referencing a phone call with the commissioner constitute something that people in your department might take as privilege? Were they concerned that the handwritten notes of a teleconference might contain sensitive information?

I mean, four pages out of 13—that is actually a significant percentage to hold back. I'm just trying to get a sense of the thought process of your department's lawyers that led to those four pages being held back.

[François Daigle]

[Technical difficulty—Editor] pages of over hundreds of pages of documents, from Superintendent Campbell. Four of those 13 pages that we held back dealt with the April 28 meeting. So we didn't just hold back the four; we held back the 13.

In answer to your specific question, if it's just a reference to a phone call with the commissioner, there's nothing privileged about that on the face of an entry in a document, so we wouldn't have flagged that for a review. We would flag for review if there's a reference to a cabinet meeting or a reference to a Treasury Board submission or a reference to legal advice. Those would be—

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Deputy Minister. I'm sorry for interrupting, but my time is short here.

Can you explain to us who is the ranking person in the Department of Justice who makes the final call on whether information is to be considered privileged or not? What level of person in your department makes that final call?

[François Daigle]

For the work that we're doing for the commission, we have a team of lawyers. They're led by Lori Ward, who is our most senior counsel there, so she—

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

So Lori Ward would have made the call.

[François Daigle]

Well, it could be somebody within her team, depending on how they've sorted out the responsibilities within the team, but counsel are able to make a determination after consultation about whether a document is privileged or not. This is something that all lawyers do.