Arif Virani

[Business of Supply, March 20th, 2019]

Madam Speaker, I thank the member for Victoria for his contributions today and his work over many years on the justice committee.

The Ethics Commissioner's investigation has significant powers to summon witnesses and require them to give evidence orally, in writing and under oath, and to produce documents. In this regard it has the same powers as a court of record in civil cases.

With respect to the medical leave of absence that the current commissioner is on, and subsection 44(7), as was previously cited, I will undertake to get back to the member on that important question. However, it should not impede the continuity of the investigation. It is not germane to the identity of one individual. The Ethics Commissioner's office is the one doing the investigation, and the Ethics Commissioner's office should be empowered to provide the report to the chamber if that is what the act stipulates.

[Business of Supply, March 20th, 2019]

Madam Speaker, as I was indicating and as members well know, the Canadian governmental system is based on a cabinet system. Cabinet consists of ministers acting in the name of the Queen's Privy Council for Canada and establishes the federal government's policies and priorities for the country. Cabinet ministers are collectively responsible for all actions taken by the cabinet and must publicly support all cabinet decisions.

In order to reach final decisions, ministers must be able to express their views freely and openly during the discussions that are held in cabinet. That level of candour is critical to their deliberations. To allow the exchange of views at the cabinet table to be disclosed publicly would result in the erosion of the collective responsibility of ministers and their ability to execute that important function.

As a result, the collective decision-making process has traditionally been protected by the rule of confidentiality, which upholds the principle of collective responsibility and enables ministers to engage in the full, frank, honest and direct discussions that are necessary for the effective functioning of a cabinet system of government.

These are not just words I am reading into the record; rather, this has been opined on and observed by the Supreme Court of Canada, recognizing that cabinet confidences and cabinet confidentiality are essential to good government in Canada.

In the decision of Babcock v. Canada in 2002, at paragraph 18, the court explained:

The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.

“Unreservedly” is the word used by the Supreme Court of Canada.

To preserve this rule of confidentiality, subsection 70(1) of the Privacy Act provides that the act does not actually apply to confidences of the Queen's Privy Council for Canada.

Subsection 70(2) of the Privacy Act indicates that cabinet confidence applies to the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, cabinet and committees of cabinet. Committees of cabinet include standing committees, ad hoc committees and any other committees of ministers.

In addition, meetings or discussions between ministers can result in the creation of records that are themselves also cabinet confidences, provided that the discussions concerned the making of government decisions or the formulation of government policy.

What is a cabinet confidence? They are defined in the act as information contained in six types of documents that are described in 70(1)(a) through (f) of the privacy legislation. The six types of documents do not constitute an exhaustive list, but rather provide a series of examples of records that are considered cabinet confidences.

This includes memoranda.

Paragraph 70(1)(a) stipulates that the act does not apply to memoranda the purpose of which is to present proposals or recommendations to cabinet. The purpose and content of a document are the determining factors, not its title.

Drafts of memoranda are also confidences. Thus, a draft memorandum that was created for the purpose of presenting proposals and recommendations to cabinet but was never actually presented to cabinet is still a confidence. Equally, a memorandum in final form is a confidence even if it has not been presented to cabinet. Material appended to a memorandum presented to cabinet will not necessarily be a confidence. It depends on the purpose of the document and its placement.

A second category is discussion papers. Paragraph 70(1)(b) stipulates that the act does not apply to discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to cabinet for consideration in making decisions. The Cabinet Papers System was amended in 1984 and these discussion papers stopped being created. Paragraph 70(1)(b) was therefore no longer invoked for cabinet documents after that date.

In the 2003 ruling in Canada (Environment) v. Canada (Information Commissioner), the Federal Court of Appeal concluded that those parts of cabinet memoranda or records intended to brief ministers, which are equivalent to what were formerly known as discussion papers, presenting, for example problems, analyses and political options, and that are appended to a document, must be identified and processed in the same manner as if they were part of a discussion paper.

There is a third category that includes the agenda and the minutes of cabinet meetings and the records of decisions made in such meetings. Paragraph 70(1)(c) states that the act does not apply to agenda of Council or records recording deliberations or decisions of Council. This type or record relates to meetings of the cabinet and cabinet committees and includes agenda, minutes and records of the decisions made at these meetings.

It should be noted that this category will include drafts of these documents and any informal notes that officials take at cabinet or cabinet committee meetings. A distinction must be made between the text of the formal record of decision and the substance of the decision of cabinet.

The formal text of the record of decision is always a confidence and is excluded from the application of the act for a period of 20 years. The substance of a cabinet decision may be disclosed to the public as deemed appropriate by cabinet or by a minister with the approval of cabinet.

A fourth category, records of communications between ministers, paragraph 70(1)(d) of the act, excludes from the application of the act any information contained in records used for or reflecting communications or discussions between ministers of the Crown on matters related to the making of government decisions or the formulation of government policy.

A fifth category, again stipulated in the act, is records to brief ministers. Paragraph 70(1)(e) of the statute excludes from the application of the act any information contained in records the purpose of which is to brief ministers of the Crown in relation to matters that are before or are proposed to be brought before the cabinet.

This paragraph also excludes information in records the purpose of which is to brief ministers in relation to matters that are the subject of communications or discussions between ministers concerning the making of government decisions or the formulation of government policy.

A sixth category is draft legislation. Paragraph 70(1)(f) excludes any information contained in draft legislation from the application of the act. It is not relevant whether the legislation was ever in fact introduced into the House of Commons or the Senate or indeed even seen by cabinet; it remains a cabinet confidence, showing the importance of the confidentiality principle.

The operation of subsection 70(1) is subject to certain time limits set out in subsection 70(3) of the act. Pursuant to paragraph 70(3)(a), confidences that have been in existence for more than 20 years cannot be excluded under subsection 70(1) of the act. After that time period, information in the record becomes subject to the act and may be released subject to any otherwise applicable exemptions.

Pursuant to paragraph 70(3)(b), discussion papers are no longer excluded from the application of the act if the decisions to which the discussion papers relate have been made public or, if the decisions have not been made public, four years have passed since the decisions were actually made.

Returning to solicitor-client privilege, as we have already discussed, confidentiality in communication between a solicitor and client is premised on the notion that if the consultation between a client and the solicitor cannot be kept confidential, then clients might be less inclined to be forthcoming with their lawyers, thus reducing the quality of the advice that a lawyer can give.

As one of the many lawyers who has a place in this chamber, I cannot overstate how important this principle is to the functioning of the legal system in this country and the importance of the legal system in this country. It is something that is critical to all parties in this chamber.

What is important to underscore is that much like the necessity for having frank, open and honest discussions around the cabinet table, frank and open discussions between a lawyer and his or her client are absolutely pivotal to the operations of the legal system and the justice system as it unfolds, whether that is in the civil context or the criminal context.

Over the last few decades in Canada, because solicitor-client privilege is so important, it has evolved from a mere rule of evidence to a substantive rule of law, as well as a principle of fundamental justice within the meaning of section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has described solicitor-client privilege as “a principle of fundamental justice and a civil right of supreme importance in Canadian law”.

Given the importance of solicitor-client privilege, the court has often declared that it should not be compromised unless absolutely necessary. It must remain absolute, with few exceptions. As such, the Supreme Court of Canada adopted strict standards for ensuring its protection.

Privilege is attached to every communication between a lawyer and a client that is for the purposes of giving and receiving legal advice and that is intended to be confidential. The privileged nature of a document or the information it contains does not depend on the category of the document but on its content and what it can reveal about the relationship and communication between a client and his or her notary or lawyer.

All communications between a solicitor and a client directly related to the seeking, formulating or giving of legal advice are privileged, along with communications within the continuum in which the solicitor tenders advice.

Solicitor-client privilege enjoys a status more elevated than that enjoyed by almost any other recognized privilege, given the central role it plays in the effective operation of our legal system. It is in the public interest that the free flow of legal advice between lawyer and client be encouraged and protected, as noted by the Supreme Court in the 2008 Blood Tribe decision, which states, “Without it, access to justice and the quality of justice in this country would be severely compromised.”

We have said many times that solicitor-client privilege is an important part of the Canadian legal system and should only be waived in appropriate circumstances. That being said, in order to facilitate the work of the ongoing investigations, we have announced an unprecedented waiver to fully sweep away the obstacles. As I have explained, that exceptional waiver addresses cabinet confidence, solicitor-client privilege and any other duty of confidentiality to the extent that they apply. This has enabled any person who engaged in discussions on this matter to fully participate in the committee process.

[Business of Supply, March 20th, 2019]

Madam Speaker, I would like to wish all members a happy International Day of La Francophonie.

I am pleased to have the opportunity to discuss the principles of cabinet confidence and solicitor-client privilege in a governmental context. I would like to begin with a few words about the important work the Standing Committee on Justice and Human Rights has done so far.

As we know, the committee has held, to date, 11 meetings on the subject of remediation agreements, the Shawcross doctrine and the discussions between the Office of the Attorney General of Canada and government colleagues. The committee heard from 10 different witnesses over the course of approximately 13 hours.

On February 21, that committee heard from the current Minister of Justice and Attorney General of Canada as well as the deputy minister of justice and deputy attorney general of Canada, Ms. Nathalie Drouin, for an hour and twenty minutes, as well as from the Clerk of the Privy Council at the time, Mr. Michael Wernick, for an hour and a half.

On February 25, a few days later, the committee heard from Mary Condon, the interim dean of the Osgoode Hall Law School; Maxime St-Hilaire, associate professor in the faculty of law of the University of Sherbrooke; Wendy Berman, a lawyer and partner at Cassels Brock & Blackwell LLP; Kenneth Jull, a lawyer at Gardiner Roberts; and academic Mary Ellen Turpel-Lafond, senior associate counsel at Woodward and Company LLP and a professor at the Peter A. Allard School of Law at the University of British Columbia, over the course of a period of about two and a half hours.

Two days subsequent to that, on February 27, the Standing Committee on Justice and Human Rights heard from the former attorney general for a period of almost four hours as a result of an unprecedented waiver that was issued by the Prime Minister. It was an exceptional waiver that addressed cabinet confidentiality, solicitor-client privilege and any other duty of confidentiality to the extent that they were applicable.

That waiver was indeed exceptional. Since 1987, there have been only four instances of cabinet confidence being waived, and none of those cases, absolutely none, included a waiver of solicitor-client privilege. The waiver was broad in scope, such that no witness was prevented from providing evidence relating to any relevant information during the period covered by the waiver, which was the focus of the committee's review.

As well, in response to this waiver, on March 6 the committee heard from the former principal secretary to the Prime Minister, Mr. Gerald Butts, for two and a half hours, in addition to recalling Ms. Drouin and Mr. Wernick, who also appeared for approximately two and a half hours.

On Tuesday, Liberal members of the committee sent a letter to the committee chair, indicating that they had achieved their objectives with respect to these meetings. They expressed that following the testimony of all witnesses, they believed that all rules and laws had been followed and that Canadians now had the necessary information to arrive at their own individual conclusions.

Yesterday, the committee adopted a motion to move on to a study of how to amend the Canada Human Rights Act “to stem the propagation of hateful acts and incitement of hate”. In my opinion, the committee's timing could not be better, in light of the tragic events that unfolded in Christchurch, New Zealand, last Friday, which bear an eerie resemblance to the tragic events on January 29, 2017, at the mosque in Quebec City.

As the Prime Minister stated in this chamber on Monday, in response to the horrific acts in Christchurch, New Zealand:

As leaders, as a privileged few with power and an audience, we have a responsibility to do something. This responsibility is not negotiable. It is not to be waived when it is politically convenient.... We have to chase out this hatred from our parties, fight it online, denounce it at town halls and push back when it reaches our front door.

We can take a stand here and now in Canada and around the world and say that enough is enough, that the days of spewing hatred and inciting violence without consequences are over.

We must counter this hatred, and together we will.

As a Muslim-Canadian member of this Parliament, I thought those were some of the most important words that have been spoken in this chamber since I was privileged enough to become a member.

The justice committee continues to do important work, and I look forward to its report on the propagation of hateful acts and the incitement of hate.

We also know that the Ethics Commissioner is conducting an investigation into this matter, and that the investigation is ongoing. On March 18, the Prime Minister announced the appointment of a special adviser to examine the position of the Minister of Justice and Attorney General of Canada and to make recommendations to the Prime Minister by June 30 of this year regarding whether any legislative changes may or may not be recommended.

That is insofar as the important issue that has surfaced in the context of these hearings with respect to what is called the Shawcross doctrine and the notion of potentially dividing the roles between two separate individuals, the role of the attorney general as compared to the role of minister of justice.

As the Prime Minister has stated, Canadians expect and deserve to have faith in their institutions and the people who serve within them. I am confident that the study by the special adviser, as well as the investigation by the Ethics Commissioner, will be thoroughly and fairly conducted and will provide Canadians with the additional answers and information that they seek.

I would now like to turn to the concept of cabinet confidence and solicitor-client privilege.

As all of us in this chamber know, the Canadian governmental system is based on a cabinet system. The cabinet consists of ministers acting in the name—

[Business of Supply, March 20th, 2019]

Madam Speaker, I thank the member for Lethbridge for her contributions today.

I will just point out a couple of clarifications before my question. The first is that as an exception, for only the fourth time in history since 1987, cabinet confidence was waived and the absolutely unprecedented solicitor-client privilege was waived to allow the former attorney general to speak. That is the first point.

Second, when she spoke, she said on the record that nothing that happened was unlawful and nothing that happened was criminal. She said in fact that the state of our institutions and the rule of law are intact. She said:

I do not want members of this committee or Canadians to think that the integrity of our institutions has somehow evaporated. The integrity of our justice system, the integrity of the director of public prosecutions and prosecutors, is intact.

Given that evidence and given that there is a desire from the opposition to get to the root of the matter, I put it to the member opposite that the Ethics Commissioner is doing an investigation in which they have powers to summon witnesses, have them put under oath, give evidence and produce documents. In this matter they have the same powers as a court of record.

Is that not the best venue for seeking the answers that the opposition clamours for in this case?

[Business of Supply, March 20th, 2019]

Madam Speaker, I thank the member for Carleton for starting off this debate, as it is an important one. However, I want to clarify a couple of things.

In the four hours of testimony that was given by the former attorney general before the justice committee, she stated that the Prime Minister told her this was her decision to make. She said specifically that it was appropriate to discuss job impacts. She said that nothing that transpired was unlawful. Nor was anything criminal.

I want to return to the point where she said that it was appropriate to discuss job impacts. The member for Carleton has, on repeated occasions in the House, asked questions about why jobs are being considered in this context.

What I am talking about refers back to the statute. The statute should ground our analysis of what we are talking about. Subsection 715.31(f) of the Criminal Code says that the purpose of this statute is “to reduce the negative consequences of the wrongdoing for persons—employees, customers, pensioners and others....”

Does the member for Carleton agree that citing employees in a statute gives legitimacy to making appropriate inquiries about job impacts?

[Committees of the House, March 18th, 2019]

Madam Speaker, I have three quick clarifications and then a question. The sub judice rule applies to two ongoing matters in respect to SNC-Lavalin: the judicial review that the member opposite just mentioned and the basic prosecution. Second, the member asked about the rule of law. A statement from the office of the DPP head, Kathleen Roussel, is that prosecutors in every case exercise their discretion independently and free from any political or partisan consideration.

The statement about the rule of law from the former attorney general at committee is, “I do not want members of this committee or Canadians to think that the integrity of our institutions has somehow evaporated. The integrity of our justice system, the integrity of the director of public prosecutions and prosecutors, is intact.”

Those are the three clarifications.

The member invoked the indigenous leaders he met with during constituency week. The member for Timmins—James Bay is participating in this debate as well. He is a strong advocate for indigenous reconciliation. Do those members believe it would be better served for those Canadians to be addressing Bill C-92 and child welfare legislation that would address indigenous reconciliation in a meaningful way rather than raising this issue, which is debating a report that was tabled not in June 2018 but in June 2017?

[Committees of the House, March 18th, 2019]

Madam Speaker, I am not going to speculate about discussions that I am not party to with respect to the government House leader and the negotiations that take place. I will confess that after three and a half years, I still find it confusing as to what happens on any given day.

That being said, we are talking today, right now, as we have been talking for several weeks now, about the rule of law and important constitutional principles. I relish these kinds of discussions. What I do think, and I remain steadfast in this, is that on a day when we are meant to be addressing indigenous reconciliation in a very meaningful and significant way, we should do just that.

[Committees of the House, March 18th, 2019]

Madam Speaker, I will confess that I do find it a bit concerning that we are doing this on a day when we have the Minister of Indigenous Services in the House and are meant to be addressing Bill C-92, regarding something that the member for Timmins—James Bay always advocates in the House with vigour, as he should, in terms of indigenous reconciliation and how fundamental it is as a priority.

Instead of working on how to get indigenous children out of the child welfare system and back in their communities, ensuring that their language, culture and customs are preserved, we are discussing a report that was tabled almost a year ago, a report that all members of the justice committee concurred in at the time. The Conservatives are using this as a means of further elaborating on the issue of SNC-Lavalin. I find that very concerning in terms of the business of the chamber.

People have been asking what the most fundamental important priority is. I would say it is the security of Canadians. It is economic security, but the most fundamental relationship for any government of any stripe has to be its relationship with indigenous peoples.

We have the opportunity this afternoon to get on with the important business of passing legislation that could be era defining, in terms of assisting children in indigenous communities from coast to coast to coast. My position is that we should be getting on with that very issue.

[Committees of the House, March 18th, 2019]

Madam Speaker, in response to both the member for St. Albert—Edmonton and the member for Timmins—James Bay, the important point that needs to be clear on the record for Canadians is that it was stated that the Prime Minister refused to accept the position of the former attorney general. That is categorically not the case. The evidence has shown that the Prime Minister indicated that the decision was for the former attorney general to take, and she confirmed that in her own testimony. That is an important point.

The member for Timmins—James Bay said that it is a matter of law. I want to clarify for the record that directives have been done in terms of classes of litigation. Directives have occurred recently for HIV non-disclosure and also for indigenous litigation. Those directives were issued even once litigation was under way.

What I would reiterate for people to understand, including the member opposite, is that decisions are made about prosecutions on an ongoing basis until a sentence is determined. That happens all the time in the to-and-fro of a courtroom process. By way of example, there is the issue of the way a criminal trial unfolds. If it is meant to be a five-day trial and pursuing one type of sentence, as the evidence unfolds on the stand, decisions are made, agreements are struck to change penalties that are being sought, etc. This is a well-known feature of Canadian criminal law and has been for literally centuries. It is something that is well entrenched in terms of how prosecutions are handled.

I hope that helps to address the concerns of the member for Timmins—James Bay in terms of the notion of what directives are and when they are applied.

[Committees of the House, March 18th, 2019]

Madam Speaker, I thank the member for St. Albert—Edmonton for his contributions today and all days on the justice committee. We do not often see eye to eye on matters of policy, but I appreciate his robust contributions at the committee and in this chamber.

In terms of the national economic interest, the member is absolutely correct. There is a provision, which he has spoken about, subsection 715.32(3) of the Criminal Code, under “Factors not to consider”. It says that:

the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada...

What is being targeted by that phrase is consideration about dual-nation relationships. In the context where there are allegations that relate to bribery of a foreign official, we are not meant to consider the international relationship or the economic interests of the particular source or destination country. This was made clear in Mr. Wernick's testimony before the committee on two occasions. It is a different aspect of the issue, but it is a valid point that is rightfully raised by the member opposite. However, I would reiterate that the purpose provisions outline not only the strict penalties, accountability and that the strict admission of responsibility needs to be done, but also the fact that jobs and pension concerns are perfectly legitimate.

Second, I would point out that the member again said that the Prime Minister refused to accept something, which is incorrect—