Government Spending, WE Charity and the Canada Student Service Grant - November 24, 2020
[ * ] An asterisk appears where sensitive information has been removed in accordance with the Access to Information Act and Privacy Act.
1. Appearance at the Standing Committee on Finance - November 24, 2020 - Speaking points
Cabinet confidence exclusions to public disclosures
The Committee invited me today to discuss Cabinet confidence exclusions to public disclosures.
The Committee’s request is further to the Government’s responses to a series of motions for the production of documents concerning the Canada Student Service Grant (CSSG) and WE Charity.
I’m prepared to speak generally to Cabinet confidence exclusions; though, I’d like to begin by giving an account of the treatment of Cabinet confidences back in July, when the Government prepared its response to the Committee’s first motion for the production of documents.
The treatment of Cabinet confidences in response to the Committee’s July motion for the production of documents
Once the Committee adopted its motion on July 7, the Government began the considerable task of collecting responsive documents.
- All departments undertook their own searches.
- A very small number of the responsive documents were Cabinet documents. Others, again in small number, were documents that contained Cabinet confidences.
- With respect to these Cabinet confidences, the Privy Council Office provided guidance to the other departments to assist them in properly responding to the Committee’s motion.
- Each department then applied redactions, or not, to its own documents.
As Committee members will recall, prior to August 8, which was the date set by the Committee for the production of documents, the Prime Minister, the Minister of Diversity and Inclusion and Youth, the then-Finance Minister and other Ministers made a number of public statements both in the media and in Parliamentary Committee about the Canada Student Service Grant and WE Charity.
- This included statements about Cabinet deliberations.
And, as I indicated in my own testimony before this Committee on July 21, we undertook to take an approach that was as expansive as possible in responding to the Committee’s motion for documents.
As the Clerk of the Privy Council, I am the custodian of Cabinet confidences. I directed that a principled approach be taken to the treatment of the Cabinet confidences in this case to ensure a non-selective application of the protection of Cabinet confidentiality.
Much information that would normally constitute Cabinet confidences was provided to the Committee.
Cabinet documents were provided to the Committee, such as:
- The proposal to Cabinet on the Canada Student Service Grant;
- The Funding Note;
- Annotated Cabinet Agenda; and
- The Records of Cabinet decisions on the Canada Student Service Grant.
Cabinet confidences located in other documents were also provided to the Committee.
What remained protected were Cabinet confidences that were not related to the subject matter of the Committee’s request.
- For example, other, unrelated items brought before Cabinet for consideration as they appeared in an Annotated Cabinet Agenda or a Record of Cabinet Decision were protected.
Also protected – and I must stress that this accounted for a minute amount of information – were the individual views of the Ministers who had not publicly spoken about the CSSG.
The result
As a result, very little information was in fact protected as a Cabinet confidence in response to the Committee motion for the production of documents concerning the CSSG and WE Charity.
- Our internal rough estimates indicate that less than 2.5% of all the information provided to the Committee was redacted on the basis that it was not relevant to the motion.
- This figure includes the Cabinet confidences unrelated to the subject matter of the motion.
- Less than 1% of the information provided to the Committee was redacted because of Cabinet confidentiality.
I believe it bears mentioning that Cabinet confidences were to be excluded from the production effort under the terms of the Committee’s July 7 motion.
This is in keeping with the House of Commons’ long-standing practice of respecting the confidentiality of Cabinet deliberations and decision-making.
The principles underlying the protection of Cabinet confidentiality
I was asked to discuss, generally, the Cabinet confidence exclusions to public disclosure.
I believe that having a good grasp of the fundamental principles underlying Cabinet confidentiality helps to explain the very real need to protect Cabinet confidences.
As you know, democracies similar to ours have long recognized the need to safeguard the confidentiality of what is said at Cabinet, and the documents prepared for those discussions.
The reasons are obvious. The process of governance in a Cabinet-style democracy works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly; free to discuss all aspects of the problems that come before them and to express all manner of views.
- Confidentiality ensures candour in Cabinet discussions, and full and frank exchange among its members.
Deliberations among ministers of the Crown and the documents that reflect the content of those deliberations are protected by the constitutional convention of Cabinet confidentiality.
- It performs a vital role in our Cabinet-style, democratic system of responsible government.
As a matter of responsible government, Cabinet is openly and collectively accountable to Parliament for the decisions it makes during the time its ministry governs.
The collective decision-making of ministers in Cabinet is a process designed to ensure that the ministry speaks with one voice. If ministers are to make decisions collectively, the privacy of their opinions and views in developing government policy must be protected. Otherwise, the collective responsibility of ministers to Parliament, which is essential to Cabinet government, would be difficult to maintain and ultimately, undermined.
Along with other constitutional conventions, Cabinet confidentiality also serves to uphold the constitutional principle of the separation of powers between the three branches of the state. In doing so, it protects the integrity of our constitutional structure.
Canadian constitutional law has long acknowledged that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state.
- Although there are limited areas of overlap, each branch plays a fundamentally distinct role.
In a recent unanimous decision, the Supreme Court of Canada reasserted that each branch must be able to perform its constitutionally-assigned functions, without undue interference by the others.
Several doctrines work to prevent undue interference by one branch onto another. This includes:
- The secrecy afforded to judicial deliberations; and
- The recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies.
In August, the Supreme Court reaffirmed that the Executive, too, benefits from a degree of protection against undue interference.
- The Court specified that the deliberations among ministers of the Crown and the records supporting and reflecting those deliberations are protected by the constitutional convention of Cabinet confidentiality.
Of course, the constitutional convention protecting the confidentiality of Cabinet deliberations does not exist just for the Cabinet of the day.
- It exists for all Cabinets: for those that came before it and for those Cabinets that will come after it.
- The constitutional convention and the protection it affords is for the benefit of our system of democratic governance.
Recognizing this importance, Parliament resolved that access to Cabinet confidences is extraordinary.
- Parliament chose to exclude Cabinet confidences from a right of access under the Access to Information Act and the Privacy Act.
- It did not grant to its agents of Parliament, a statutory right of access to Cabinet confidences.
- Nor, as a matter of federal law, did Parliament allow our courts access to Cabinet confidences.
The Committee’s July 7 motion stipulated that Cabinet confidences were to be excluded from the production of documents.
This is in keeping with the House of Commons’ long-standing practice of respecting the confidentiality of Cabinet decision-making.
- As was stated by the former Speaker of the House of Commons, the Honourable Roland Mitchener, on November 6, 1957, the “decision of the government is one and indivisible. Inquiry into how it is arrived at and particularly, inquiry into the cabinet process, is not permitted in the house”.
- It is also how the Supreme Court understands the practice of the House of Commons, as noted in the seminal decision of Babcock.
The Prime Minister and members of Cabinet appeared before committees of this House to provide answers to questions about its decisions on the CSSG.
The Prime Minister and this Cabinet chose to make public its confidences on the CSSG because of the questions raised about the delivery of the program.
- This is a recognized exception in law to maintaining Cabinet confidentiality.
Again, as the Clerk of the Privy Council and custodian of Cabinet confidences, I directed that a principled approach was taken to the treatment of the Cabinet confidences in this case to ensure a non-selective application of the protection of Cabinet confidentiality.
As a result, and in keeping with the public disclosures made by members of Cabinet, considerable information on the CSSG that would have otherwise constituted Cabinet confidences was provided to the Committee.
I would be pleased to take any of your questions.
[ * ]
The principles underlying the protection of Cabinet confidentiality
I was asked to discuss, generally, the Cabinet confidence exclusions to public disclosure.
I believe that having a good grasp of the fundamental principles underlying Cabinet confidentiality helps to explain the very real need to protect Cabinet confidences.
As you know, democracies similar to ours have long recognized the need to safeguard the confidentiality of what is said at Cabinet, and the documents prepared for those discussions.
The reasons are obvious. The process of governance in a Cabinet-style democracy works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly; free to discuss all aspects of the problems that come before them and to express all manner of views.
- Confidentiality ensures candour in Cabinet discussions, and full and frank exchange among its members.
Deliberations among ministers of the Crown and the documents that reflect the content of those deliberations are protected by the constitutional convention of Cabinet confidentiality.
- It performs a vital role in our Cabinet-style, democratic system of responsible government.
In a system of responsible government, Cabinet is openly and collectively accountable to Parliament for the decisions it makes during the time it governs.
If ministers are to make decisions collectively, the privacy of their opinions and views in developing government policy must be protected. Otherwise, the collective responsibility of ministers to Parliament, which is essential to Cabinet government, would be difficult to maintain.
Along with other constitutional conventions, Cabinet confidentiality also serves to uphold the constitutional principle of the separation of powers between the three branches of the state. In doing so, it protects the integrity of our constitutional structure.
Canadian constitutional law has long acknowledged that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state.
- Although there are limited areas of overlap, each branch plays a fundamentally distinct role.
In a recent unanimous decision, the Supreme Court of Canada reasserted that each branch must be able to perform its constitutionally-assigned functions, without undue interference by the others.
Several doctrines work to prevent undue interference by one branch onto another. This includes:
- The secrecy afforded to judicial deliberations; and
- The recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies.
In August, the Supreme Court reaffirmed that the Executive, too, benefits from a degree of protection against undue interference
- The Court specified that the deliberations among ministers of the Crown and the records supporting and reflecting those deliberations are protected by the constitutional convention of Cabinet confidentiality.
Of course, the constitutional convention protecting the confidentiality of Cabinet deliberations does not exist just for the Cabinet of the day.
- It exists for all Cabinets: for those that came before it and for those Cabinets that will come after it.
- The constitutional convention and the protection it affords is for the benefit of our system of democratic governance.
Recognizing this importance, Parliament resolved that access to Cabinet confidences is extraordinary.
- Parliament chose to exclude Cabinet confidences from a right of access under the Access to Information Act and the Privacy Act.
- It did not grant to its agents of Parliament, a statutory right of access to Cabinet confidences.
- Nor, as a matter of federal law, did Parliament allow our courts access to Cabinet confidences.
The Committee’s July 7 motion stipulated that Cabinet confidences were to be excluded from the production of documents.
This is in keeping with the House of Commons’ long-standing practice of respecting the confidentiality of Cabinet decision-making.
- As was stated by the former Speaker of the House of Commons, the Honourable Roland Mitchener, on November 6, 1957, the “decision of the government is one and indivisible. Inquiry into how it is arrived at and particularly, inquiry into the cabinet process, is not permitted in the house”.
- It is also how the Supreme Court understands the practice of the House of Commons, as noted in the seminal decision of Babcock.
The Prime Minister and members of Cabinet appeared before committees of this House to provide answers to questions about its decisions on the CSSG.
The Prime Minister and this Cabinet chose to make public its confidences on the CSSG because of the questions raised about the delivery of the program.
- This is a recognized exception in law to maintaining Cabinet confidentiality.
Again, as the Clerk of the Privy Council and custodian of Cabinet confidences, I directed that a principled approach was taken to the treatment of the Cabinet confidences in this case to ensure a non-selective application of the protection of Cabinet confidentiality.
As a result, and in keeping with the public disclosures made by members of Cabinet, considerable information on the CSSG that would have otherwise constituted Cabinet confidences was provided to the Committee.
2. Appearance at the Standing Committee on Finance - Re: Cabinet confidence exclusions to public disclosures - November 24, 2020 - Notes
[ * ]
- August media reports had indicated that about 25% of the content of the Committee’s package was redacted.
- Recently, the Conservative Finance Critic (Pierre Poilièvre) said that Cabinet confidences accounted for 46% of the redactions.
The principles underlying the protection of Cabinet confidentiality
[ * ]
3. FINA (WE) Motion for the Production of Documents - Overview
Overview of approach
On July 7, 2020, FINA adopted the following motion:
“That, pursuant to Standing Order 108(1)(a), the Committee order that any contracts concluded with WE Charity and Me to We, all briefing notes, memos and emails, including the contribution agreement between the department and WE Charity, from senior officials prepared for or sent to any Minister regarding the design and creation of the Canada Student Service Grant, as well as any written correspondence and records of other correspondence with WE Charity and Me to We from March 2020 be provided to the Committee no later than August 8, 2020; that matters of Cabinet confidence and national security be excluded from the request; and that any redactions necessary, including to protect the privacy of Canadian citizens and permanent residents whose names and personal information may be included in the documents, as well as public servants who have been providing assistance on this matter, be made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.”
On July 21, 2020, when the Clerk of the Privy Council Office appeared before FINA, the following documents were also requested (“Clerk’s undertakings”):
- All communications between PMO staff and PCO staff relating to WE charity contribution agreement and the Canada student service grant
- All communications between Finance Minister’s Office and PCO and related to WE charity contribution agreement and the Canada student service grant
- All communications between Finance Minister’s Office and the Finance Department related to WE charity contribution agreement and the Canada student service grant
- Due diligence analysis of any financial scrutiny undertaken with regard to the WE charity (if there are relevant documents) during this process.
ESDC and PCO discussed which departments had been involved in the development of the CSSG and/or had been approached by WE and, in the end, ESDC, PCH, Finance, PCO, TBS, and ISED were tasked with searching for documents related to the motion and with records that were responsive to the undertakings made by the Clerk.
Guidance in interpreting the scope of the motion was initially developed by ESDC and then refined by PCO, following consultation with implicated departments:
- All briefing notes, memos and emails, including the contribution agreement between the government and the organization, from senior officials prepared for or sent to any Minister regarding the design and creation of the Canada Student Service Grant. The parameters were determined to be as follows:
- The starting point is when the Canada Student Service Grant crystallized;
- Senior official is defined as DG and above;
- Minister includes Minister’s office; and
- Drafts sent to Ministers’ offices are in scope, exchanges of drafts between DG and higher (but not to Minister’s office) are not in scope.
- Any written correspondence and records of other correspondence with We Charity and Me to We from March 2020 - Records of letters and emails should be included as should notes on telephone calls and notes from meetings. Correspondence between officials regarding interactions with WE are to be included. Discussions between officials about WE are to be excluded.
The term “due diligence” in relation to the Clerk’s undertakings was defined as documents that demonstrate any due diligence exercised, including any financial assessments of the organization, in relation to the contribution agreement for the Canada Student Service Grant.
Guidance was also provided by PCO to assist departments in determining whether information should be excluded as a Cabinet confidence, in light of various public disclosures made by members of the Queen’s Privy Council of Canada.
All departments undertook their own searches and applied their own redactions.
As with all document production requests, departments were also guided by Open and Accountable Government (2015) which states:
Public servants also have a duty to hold in confidence some of the information that comes into their possession in the course of their duties. There is a tension between that obligation and the request of parliamentarians for disclosure of that same information. When appearing before parliamentary committees, public servants should refrain from disclosing that kind of confidential information, for instance because the information is confidential for reasons of national security or privacy, or because it consists of advice to Ministers. Accounting officers should not disclose confidential information, including advice to Ministers, even where that information pertains to matters of organizational management. In practice, officials should endeavour to work with Members of Parliament, in cooperation with Ministers and their offices, to find ways to respond to legitimate requests for information from Members of Parliament, within the limitations placed on them.
This same passage was contained in the 2011 version of Open and Accountable Government.
Media coverage has reported that 25% of the information contained in the documents that were provided to the committee were redacted. This seemed to be a high percentage based on what we knew was redacted in the PCO package and based on discussions with departments in the preparation of the packages. As a result, we went back to departments and asked for a more detailed breakdown both of the type of redactions that were made and the quantity of the redactions.
A review conducted by PCO Legislation and House Planning and departments confirmed the approach taken by departments was in keeping with the Clerk of the Privy Council’s direction to be as expansive as possible. A rough estimate is that close to 4% of the information contained in the documents was redacted: with 2.5% that was not relevant to the motion (including Cabinet confidences) and less than 1% that was information about the student grant, but which remains a Cabinet confidence [ * ]. All of this information was to be excluded under the terms of the motion. As a result, in our view, the House of Commons Law Clerk had no role in reviewing this material.
[ * ]
Treatment of Cabinet confidences
The committee’s motion stipulates that Cabinet confidences are to be excluded from the package.
[ * ]
The third party was consulted and did not consent to the release of the report because it contains personal and proprietary information. Therefore, it was severed in its entirety. This was explained by the Deputy Minister in his cover memo that was attached to the Finance documents provided to the committee.
[ * ]
Solicitor client privilege
In his letter to the committee, the Clerk of the Privy Council noted that he was prepared to issue a limited waiver of solicitor client privilege as it relates to the information that was provided by departments.
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4. [ * ]
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6. Summaries
From: Perreault, Claudie <Claudie.Perreault@pco-bcp.gc.ca>
Sent: Tuesday, November 24, 2020 10:29 AM
To: Bowles, Louise <Louise.Bowles@pco-bcp.gc.ca>
Subject: Fwd: FINA summaries
As discussed
Sent from my iPhone
Begin forwarded message:
From: "Welbourne, Maia" <Maia.Welbourne@pco-bcp.gc.ca>
Date: November 24, 2020 at 10:27:55 AM EST
To: "Perreault, Claudie" <Claudie.Perreault@pco-bcp.gc.ca>
Cc: "McCowan, Ian" <Ian.McCowan@pco-bcp.gc.ca>, "van Dieen, Jodie" <Jodie.vanDieen@pco-bcp.gc.ca>, "Cintrat, Jean" <Jean.Cintrat@pco-bcp.gc.ca>
Subject: FW: FINA summaries
Hi Claudie –
Below are summaries of all the FINA meetings since the beginning of the current session (first meeting October 8). We can provide the actual transcripts of the meeting as well, but I find these are easier to navigate quickly.
Maia
From: Cintrat, Jean <Jean.Cintrat@pco-bcp.gc.ca>
Sent: Tuesday, November
To: Welbourne, Maia <Maia.Welbourne@pco-bcp.gc.ca>
Subject: FINA summaries
Report on Standing Committee Meeting
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | November 19, 2020 (15:33 - 17:32) |
| Subject: | Committee Business |
| Note that this report is provided for information purposes only and should not be quoted. | |
Summary
The Standing Committee on Finance (FINA) met in order to discuss Committee Business particularly as it relates to the Point of Privilege raised by Mr. Poilievre in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant).
A motion was adopted to set aside the Point of Privilege and requests that the Government provide the Parliamentary Law Clerk with all documents originally requested in the July 7th, 2020 motion, without any redaction, omission or exclusion, except what was redacted for Cabinet Confidences, and that these documents be provided by November 24, 2020. The motion also asks for the Clerk of the Privy Council and the Conflict of Interests and Ethics Commissioner to appear in front of the Committee before November 25, 2020.
Another motion was introduced and adopted to begin Pre-Budget Consultations (PBC) and asks that the Deputy Prime Minister and departmental officials appear before the committee. It also requests witness lists from FINA members be submitted to the Clerk by Wednesday, November 25, 2020 at the latest. The Subcommittee is expected to meet tomorrow or Monday to discuss these questions and establish a timeline for the proposed witnesses.
Point of Privilege Motion
Following conversations between FINA members this week, Parliamentary Secretary, Mr. Sean Fraser (LPC) introduced a motion. The motion was amended through friendly amendments by both Mr. Poilievre and Mr. Peter Julian (NDP) to address concerns that the government could give a different set of documents than what was intended or could expand the number of redactions under Cabinet Confidence. After debate, the Committee adopted the motion. Note that the below was captured through reading of the motion during proceedings and is subject to confirmation by the Committee through unedited transcripts and minutes of proceedings. As such, the below is provided for information purposes only and should not be quoted.
- That the committee temporarily set aside the motion relating to the Point of Privilege put forward by the member for Carleton on October 8, 2020 and the subsequent sub-amendments moved by the member for Calgary Rocky Ridge and the member for Kingston and the Islands;
- and that the Committee adopt all evidence heard in the first session of the 43rd Parliament during the Committee’s study on “Government spending, WE and the Canada Student Service Grant”;
- and that the Committee order that by November 24th, 2020, the Government provide the Parliamentary Law Clerk with all documents as originally requested in the July 7, 2020, motion moved by the member for New Westminster Burnaby, including all documents the Government provided the Law Clerk in August, without any redaction, omission or exclusion, except as justified originally insections and subsections 69(1) through 69(3)b-II of the Access to Information Act, that the information remain in the Office of the Law Clerk and Parliamentary Council and be used exclusively by him to determine the Government’s compliance or non-compliance with the July 7 motion;
- and that the Clerk of the Privy Council and the Conflict of Interests and Ethics Commissioner appear no later than November 25th, 2020 to discuss “Cabinet Confidences” exclusions to public disclosure;
- and that the Law Clerk testify before the Committee regarding documents received from the Government pursuant to this motion to provide his views on the Government’s compliance or non-compliance with the July 7th motion.
Pre-Budget consultations
The second part of the meeting saw FINA discuss PBC and the different timelines possible. Ms. Julie Dzerowicz (LPC) introduced a motion similar to her October 8, 2020 motion. After debate and amendment, the following motion was adopted by the Committee (Note that the below was capture through reading of the motion during proceedings and is subject to confirmation by the Committee through unedited transcripts and minutes of proceedings. As such, the below is provided for information purposes only and should not be quoted).
That pursuant to its mandate under standing order 83.1, the standing committee on Finance begins the Pre-Budget Consultations 2021 on Thursday November 26, 2020 and that:
- the Deputy Prime Minister and department officials appear before the committee;
- the evidence and documentations received by the Committee during the first session of the 43rd parliament on pre-budget consultations be taken into consideration by the Committee in the current session;
- the Committee allows witnesses to change their testimonies if they feel so obliged based on the rapidly evolving situation around COVID-19;
- the evidence and documentations received by the Committee during the first session of the 43rd parliament on COVID-19 consultations be taken into consideration by the Committee in the current session;
- each party submit a preliminary witness list no later than 6 p.m. on Monday November 23rd, 2020;
- each party submit a final witness list no later than 6 p.m. on Wednesday November 25th, 2020.
It was mentioned that the Governor of the Bank of Canada has made himself available for FINA’s meeting on Thursday November 26, 2020, but it has not been confirmed and it is not clear yet how other witnesses, both for the PBC motion and the motion replacing the Point of Privilege, will be scheduled. Some members expressed a desire to host the Minister of Finance and the Governor of the Bank of Canada for three hours each. This raised logistics issues with FINA’s capacity to do so in the current context and the Committee has agreed that the Subcommittee will meet as soon as possible to discuss these questions and establish a timeline for the witnesses.
| Study | Next meeting dates & steps | Deadline to complete study | Date study agreed to or referred |
|---|---|---|---|
| Committee Business |
|
|
|
| Note: the above is an evergreen table outlining all business the Committee has agreed to undertake or that it will need to undertake in future (this includes studies/activities agreed-to by the Committee, either through a motion or consensus, or matters referred to the Committee by the House). The purpose of this table is to provide an overview, for informational and planning purposes, of upcoming Committee activities. | |||
Report on standing committee meeting
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | November 17, 2020 (4:00 PM – 6:00 PM) |
| Subject: | Committee Business |
| Note that this report is provided for information purposes only and should not be quoted. | |
Summary
The Standing Committee on Finance (FINA) reconvened their November 5, 2020 meeting at 4:00 PM in order to continue discussions on a previously introduced sub-amendment to the Point of Privilege raised by Mr. Poilievre in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant).
At the beginning of the meeting, CPC Finance critic, Mr. Pierre Poilievre, moved to introduce the following motion (subject to confirmation), setting aside the Point of Privilege motion in an attempt to find a compromise that would allow FINA to move forward on the issue:
- That the committee temporarily set aside the motion relating to the Point of Privilege put forward by the member for Carleton on October 8, 2020 and the subsequent sub-amendments moved by the member for Calgary Rocky Ridge and the member for Kingston and the Islands;
- and that the Committee adopt all evidence heard in the first session of the 43rd Parliament during the Committee’s study on “Government spending, WE and the Canada Student Service Grant”;
- and that the Committee order that by November 20th, 2020, the Government provide the Parliamentary Law Clerk with all documents originally requested in the June 7th, 2020, motion moved by the member for New Westminster Burnaby, without any redaction, omission or exclusion, except as would be justified in sections and subsections 69(1) through 69(3)b-II of the Access to Information Act (Cabinet Confidence);
- and that the Clerk of the Privy Council and the Ethics Commissioner appear no later than November 25th, 2020 to discuss “Cabinet Confidence” exclusions to public disclosure;
- and that the Law Clerk testify before the Committee regarding documents received from the Government pursuant to this motion.
The Chair highlighted that the motion was not technically in order as they were currently on a sub-amendment on the Point of Privilege, but that they could entertain it if there was unanimous consent. To be in order, the Chair suggested FINA would need to adjourn the motion on the Point of Privilege before introducing a new motion. Alternatively, if the sub-amendment was retracted, the Point of Privilege motion could be amended to reflect the new motion.
After a 20 min suspension, the Committee unofficially debated the motion, with Mr. Sean Fraser (LPC) saying he needed more time to consider the motion, citing concerns with timelines. Opposition members interpreted this request for more time as a delaying tactic and seemed unwilling to suspend again. This led the Chair to rule the motion as out of order since there was no unanimous consent. The members then went back to debating the sub-amendment, as they have been for the last few weeks. The Chair suspended the meeting at 6:00 PM to allow other committees to meet.
Even if there was no unanimous consent on the motion, it looked as though a compromise could be reached in the coming days, with the Chair urging House Leaders to find a solution in time for their next meeting on Thursday November 19. This would allow the committee to move to PBC and possibly hear from the Governor and the Deputy Governor of the Bank of Canada this week. On this topic, the Chair has suggested two possible courses of action:
- That they proceed under normal standing order, which means they would need to report on PBC by December 8. Analysts have been trying to get the 793 briefs in summary order, but this would leave hardly time to hear from witnesses in person, considering they would need three more meeting to propose, discuss and adopt recommendations.
- That they get permission from the House to table the first week of February 2021 instead. They would need permission to hold virtual meetings past December 8 and could capitalize on the fact that Committees would not meet after December 11, leaving a few more days in December to hold meetings with witnesses and would leave January for analysts to draft the report.
They have not yet debated on this issue and no decision was reached.
| Study | Next meeting dates & steps | Deadline to complete study | Date study agreed to or referred |
|---|---|---|---|
| Committee Business |
|
|
|
| Note: the above is an evergreen table outlining all business the Committee has agreed to undertake or that it will need to undertake in future (this includes studies/activities agreed-to by the Committee, either through a motion or consensus, or matters referred to the Committee by the House). The purpose of this table is to provide an overview, for informational and planning purposes, of upcoming Committee activities. | |||
Report on Standing Committee
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | November 5, 2020 (4:15 p.m. – 6:00 p.m.) |
| Subject: | Committee Business |
| Note that this report is provided for information purposes only and should not be quoted. | |
Summary
The House Standing Committee on Finance (FINA) met this afternoon at 4:15 to continue discussions on a previously introduced sub-amendment to the Point of Privilege motion raised by Mr. Poilievre in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant).
At one point, NDP Finance critic Peter Julian, tried to amend the sub-amendment as follows:
- That the committee requests the complete package of documents provided to the Office of the Law Clerk and Parliamentary Counsel of the House of Commons by relevant Deputy Ministers or the signatories of the transmittal letters, as well as the final package of documents that the Law Clerk and Parliamentary Counsel of the House of Commons approved for release, that both of the document packages be provided to the Committee no later than October 19, 2020, and that after the committee reviews the two different versions of documents, the committee invite each of the relevant Deputy Ministers or the signatories of the transmittal letters, as well as the Law Clerk and Parliamentary Counsel of the House of Commons, to give testimony regarding the redactions applied to the documents that were requested and granted in the motion adopted on July 7, 2020, and that the committee proceed immediately, following a vote on the point of privilege motion, to discussion of the pre-budget hearings.
However this was ruled out of order, as a sub-amendment cannot be amended, but rather has to be voted down before another sub-amendment is introduced to replace it.
Although attempts to move from debate to a vote on the sub-amendment have not been successful, it has been noted by members that they are closer to finding a way forward. Ms. Julie Dzerowicz has alluded that members are in agreement not to release Cabinet Confidence and matters of national security, but that no agreement has been found on content that was redacted citing relevance.
The meeting was suspended by the Chair at 6:00 to allow the Standing Committee on Canadian Heritage to meet.
| Study | Next meeting dates & steps | Deadline to complete study | Date study agreed to or referred |
|---|---|---|---|
| Committee Business |
|
|
|
| Note: the above is an evergreen table outlining all business the Committee has agreed to undertake or that it will need to undertake in future (this includes studies/activities agreed-to by the Committee, either through a motion or consensus, or matters referred to the Committee by the House). The purpose of this table is to provide an overview, for informational and planning purposes, of upcoming Committee activities. | |||
Report on Standing Committee Meeting
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | October 29, 2020 (4:15 p.m. – 5:45 p.m.) |
| Subject: | Committee Business |
| Note that this report is provided for information purposes only and should not be quoted. | |
Summary
The House Standing Committee on Finance (FINA) reconvened this afternoon to continue the meeting of October 28, 2020 on Committee Business. The meeting was scheduled to start at 3:30 but did not begin until 4:15. The members started by agreeing to a 20 minutes in camera meeting. The meeting stayed in-camera for longer than anticipated and became public again at 5:30. Members continued discussions on a previously introduced sub-amendment to the Point of Privilege raised by Mr. Poilievre in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant).
Attempts to move from debate to a vote on the sub-amendment have not been successful and the meeting was suspended by the Chair at 5:45, who cited concerns on the ability of other Committees to meet if the meeting continued.
| Study | Next meeting dates & steps | Deadline to complete study | Date study agreed to or referred |
|---|---|---|---|
| Committee Business |
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| Note: the above is an evergreen table outlining all business the Committee has agreed to undertake or that it will need to undertake in future (this includes studies/activities agreed-to by the Committee, either through a motion or consensus, or matters referred to the Committee by the House). The purpose of this table is to provide an overview, for informational and planning purposes, of upcoming Committee activities. | |||
Report on Standing Committee Meeting
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | October 28, 2020 (4:20 p.m. – 00:30 a.m.) |
| Subject: | Committee Business |
Summary
The House Standing Committee on Finance (FINA) met this afternoon to discuss Committee Business. The meeting was scheduled to start at 3:30 but did not begin until 4:20, with an in camera portion which lasted until shortly before 6 pm.
Debate resumed on the sub-amendment proposed by Mr. Gerretsen which requests that the Committee reviews a copy of documents provided by departments, and a copy of the version released by the Law Clerk after which the deputy heads of responding departments would appear to explain redactions. The main motion would be considered after witnesses are heard. Liberal members have focused on a letter sent to the Committee by the Clerk of the Privy Council in which he offered to appear before the committee to speak to the process behind the redactions made to the material which was submitted to the committee. Liberal members have also emphasized the importance and value of allowing both Mr. Shugart and the Law Clerk to appear before the committee to speak to the redactions. CPC critic Mr. Pierre Poilievre insisted they should ask the Law Clerk to review the unredacted documents and that they were not asking for sensitive material to be released to the public at large.
Attempts to move from debate to a vote on the sub-amendment have not been successful and the meeting was suspended by the Chair at 00:30 AM for health and safety reasons. The tone of the meeting was mostly cordial with a few points of order on what was seen as repetitive or irrelevant arguments.
| Study | Next meeting dates & steps | Deadline to complete study | Date study agreed to or referred |
|---|---|---|---|
| Committee Business |
|
|
|
| Note: the above is an evergreen table outlining all business the Committee has agreed to undertake or that it will need to undertake in future (this includes studies/activities agreed-to by the Committee, either through a motion or consensus, or matters referred to the Committee by the House). The purpose of this table is to provide an overview, for informational and planning purposes, of upcoming Committee activities. | |||
Report on Standing Committee Meeting
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | Thursday October 15, 2020 (11:00 a.m. to 10:15 p.m.) |
| Subject: | Committee Business |
Overview and key issues
The House Standing Committee on Finance (FINA) resumed their meeting, which was suspended at 6:34 p.m. on October 8th, 2020, this morning at 11:00 a.m. to continue discussions on motions proposed by members. The meeting was adjourned at 10:15 p.m. following a motion by the Liberal Party (LPC) and supported by the Bloc Québécois. No motions were adopted.
The tone of the meeting was tense, with many members raising points of orders after what they felt were personal attacks or repetitive and off-topic interventions.
Motion discussed
Lengthy discussions arose on the motion following the Point of Privilege raised by the Conservative Finance Critic (MP Poilievre) in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant). The following amendment (subject to confirmation) was introduced to bring over documents from the previous session:
- That evidence heard and papers received by the Committee during its study on government spending, WE and the Canada Student Service Grant during the first session of the 43rd Parliament be taken into consideration by the Committee during the current session and accordingly.
A few sub-amendments were introduced by LPC members and were debated extensively. The first sub-amendment (subject to confirmation) called for “the clerk of the committee do a complete analysis of the documents provided to the committee by the Law Clerk and compare them to those that were provided to members by the government” moved to a vote and was defeated 6 to 5.
A second sub-amendment (subject to confirmation) to be added to the end of the original motion was then proposed by Mr. Gerretsen “that the Clerk and analysts prepare a page annotation which enabled members and the Canadian public to easily find pages in the various version of the document disclosure requested by FINA.” There was no debate of this sub-amendment and it was quickly voted down by a 6 to 5 score.
A third sub-amendment (subject to confirmation) was proposed by Mr. Gerretsen which asks that “the committee request a copy of documents provided by departments, and a copy of the version released by the Law Clerk. These documents would be due to the committee by October 19. After they have been reviewed by the committee, the deputy heads of responding departments be invited to appear to explain redactions and the main motion be considered after witnesses are heard.”
The introduction of this sub-amendment led to a number of points of order being raised, questioning whether it was admissible. The Chair ruled that the sub-amendment was in order. Once the Chair offered his ruling, debate on the sub-amendment began. The meeting was adjourned before a vote could be taken on this sub-amendment.
Other points of interest
One point of interest was the question of in-camera presence with the Chair saying he would have to verify if members should count in the quorum if their camera is turned off. The point was not decided definitively.
Another point of interest was raised in relations to the Pre-Budget Consultations (PBC). Expressing concern that the debate was obstructing the issues such as COVID-19 and PBC, which should be the focus of the committee, Mr. Fragiskatos asked what would happen should the committee violate standing order 83.1, which dictates the need to conduct PBC’s. The Chair instructed the Clerk to check with the Law Clerk to obtain a response to the question.
Follow-ups / Next Steps
- FINA will meet again tomorrow morning, October 16, 2020, at 11:00 a.m.
Report on Standing Committee Hearing
| Name of Committee: | Standing Committee on Finance (House of Commons) |
|---|---|
| Date and time: | Thursday October 8, 2020 (3:30 p.m. to 6:34 p.m.) |
| Subject: | Election of Chair |
Overview and key issues
The Committee met for the first time in the new session to elect a Chair and address house-keeping issues. Following the election of Wayne Easter (LPC) as Chair, and Pierre Poilievre (CPC) and Gabriel Ste-Marie (BQ) as vice-chairs, the Committee carried multiple housekeeping motions, one of which established speaking times for witnesses and questioners.
After these motions, the LPC moved a motion authorizing the launch of the committee’s pre-budget consultations (PBC) in advance of the 2021 Budget on Tuesday October 13, 2020. The motion stipulated the committee must table its PBC report no later than Tuesday December 8, 2020.
Consideration of the PBC motion was interrupted by a Point of Privilege raised by the Conservative Finance Critic (MP Poilievre) in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant). Extensive debate ensued with all three opposition parties seemingly approving the motion. During the debate the New Democratic Party Finance Critic (MP Julian) introduced an additional motion to create a Special Committee that would review government spending during the pandemic, to be debated at a later meeting.
The tone of the meeting was cordial in the beginning, becoming more tense during debate of the point of privilege. Vigorous debate continued well past the committee’s original two-hour meeting time. The committee temporarily suspended proceedings 6:34PM in order to consider the procedural admissibility of the CPC motion. The CPC strongly opposed the suspension, vowing to vote against motions to adjourn until a vote was held on the CPC motion. The committee proceedings remain suspended as of 11:30 AM on October 9, 2020.
Housekeeping motions
Most motions were keeping with procedures in past sessions, establishing the Sub-Committee on agenda and procedure, determining the ability of the Clerk to receive evidence and distribute documents and addressing varied topics such as expenses reimbursed to witnesses, working meals for Committee members, staff members allowed as well as transcripts and notices of meetings.
One of the motion established that, going forward, witnesses would be given five minutes for their opening statements, as opposed to ten minutes in the last session, and determined the order and time for the questioning rounds as follows:
- That, at the discretion of the Chair, during questioning of witnesses there be allocated six minutes for the first questioner of each party as followed: Conservative Party, Liberal Party, Bloc Québécois, New Democratic Party.
- For the second and subsequent rounds, the order and time for questioning must be as follows: Conservative Party, five minutes; Liberal Party, five minutes; Bloc Québécois two and a half minutes and New Democratic Party two and a half minutes; Conservative Party, five minutes; Liberal Party, five minutes.
Pre-Budget Consultation motion
Julie Dzerowicz introduced the following motion (subject to confirmation). The debate for the motion was interrupted by a point of privilege.
- That pursuant of its mandate understanding order 83.1, the standing committee of Finance begins the pre-budget consultations 2021 on Tuesday October 13, 2020 and that a) the Deputy Prime Minister and department officials appear before the committee; b) the evidence and documentations received by the Committee during the first session of the 43rd parliament on pre-budget consultations be taken into consideration by the Committee in the current session; c) the Committee allows witnesses to change their testimonies if they feel so obliged based on the rapidly evolving situation around COVID-19; d) each party submit a Parliamentary witness list no later than 6 p.m. on October 14, 2020; e) each party submit a final witness list no later than 6 p.m. on Friday October 16, 2020; and f) the Committee request permission, from the House, to table its report on pre-budget consultations no later than Tuesday December the 8th.
Point of privilege
The CPC had initially raised a Point of Privilege in the House of Commons on September 24, 2020, stating the redactions applied to the response documents breached the FINA order and usurped the role assigned to the Law Clerk. On October 1, 2020, the Speaker found no prima facie breach of privilege but in his ruling stated, [FINA] “…has control over the interpretation of its order, has an opportunity to examine the documents and decide what to do with them.” MP Poilievre spoke to the matter of privilege then moved a motion which read, in part (subject to confirmation):
- That the Chair be instructed to present the following report to the House forthwith provided that dissenting or supplementary opinions pursuant to standing order 108-1b shall be filed with the Clerk of the Committee within 24 hours of the adoption of this motion. (…) At its October 8, 2020 organizational meeting, your committee considered the government’s response to the July 7, 2020 order. Your Committee has concluded that the government’s response failed to comply with the order and, accordingly, wishes to draw the attention of the House to what appears to be a breach of its privileges by the government’s refusal to provide documents in the manner ordered by the Committee. Your Committee therefore recommends that an order of the House do issue for the unredacted version of all documents produced by the government in response to the July 7, 2020 order of the standing Committee of Finance provided that these documents shall be laid upon the table within one sitting day of the adoption of this order.
This motion was extensively debated, with the LPC arguing the motion was out of order since the documents had been produced in the last session and were never officially studied by FINA. The Clerk confirmed that the Committee was not currently in ownership of the documents and that a motion would need to be adopted by the Committee to have the evidence of 43-1 brought forward to 43-2. This caused the Chair to suspend the meeting to verify if the motion was procedurally in order, meeting strong opposition from the CPC, who had stated they would not allow the adjournment of the meeting until a vote had been held on the motion.
The CPC, the NDP and the BQ all seemingly supported the motion, saying it was necessary to maintain public trust in government and that it was part of their mandate to examine if funds were appropriately dispatched. Mr. Poilievre refuted the idea that the motion was out of order, arguing FINA had received documents that did not respect its will and that they needed to report this back to the House so it could be voted upon by members.
Motion to create a Special Committee
During the debate on the point of privilege, Mr. Peter Julian (NDP) introduced a motion to be debated at a subsequent meeting, which reads (subject to confirmation), in part:
- That in light of troubling allegations of misuse of public funds by government during the COVID-19 pandemic in Canada, the House appoints a Special Committee to conduct hearing to examine and review all aspects of the government’s spending in response to the pandemic, including but not limited to: Canada Student Service Grant, Canada emergency commercial rent assistance program and the procurement of personal protective equipment. (…) that the Clerk of the House shall convene and organize a meeting of the said Committee for no later than November 20, 2020; (…) that the Prime Minister, the Deputy Prime Minister, the Minister of Health and other Ministers and senior officials be ordered to appear as witnesses from time to time as the committee sees fit; and l) that the committee report no later than February 15, 2021.
Follow-ups / Next Steps
- The meeting remains suspended as of 11:30 AM on October 9, 2020. PA will continue to monitor and report back when the Committee reconvenes.
Report on Standing Committee Hearing
FINA Oct. 8, 2020
The House Standing Committee on Finance (FINA) met at 3:30PM this afternoon to elect a chair. Following the election of Wayne Easter (LPC) as Chair and Pierre Poilievre and Gabriel Ste-Marie (BQ) as vice-chairs, the LPC moved a motion authorizing the launch of the committee’s pre-budget consultations (PBC) in advance of the 2021 Budget on Tuesday October 13, 2020. The motion stipulated the committee must table its PBC report no later than Tuesday December 8, 2020.
Consideration of the PBC motion was interrupted by a Point of Privilege raised by the Conservative Finance Critic (MP Poilievre) in relation to the production order FINA adopted in the previous session (July 7, 2020: Canada Student Service Grant). The CPC had initially raised a Point of Privilege in the House of Commons on September 24, 2020, stating the redactions applied to the response documents breached the FINA order and usurped the role assigned to the Law Clerk. On October 1, 2020, the Speaker found no prima facie breach of privilege but in his ruling stated, [FINA] “…has control over the interpretation of its order, has an opportunity to examine the documents and decide what to do with them.” MP Poilievre spoke to the matter of privilege then moved a motion which read, in part (subject to confirmation):
- That the Chair be instructed to present the following report to the House forthwith provided that dissenting or supplementary opinions pursuant to standing order 108-1b shall be filed with the Clerk of the Committee within 24 hours of the adoption of this motion. (…) At its October 8, 2020 organizational meeting, your committee considered the government’s response to the July 7, 2020 order. Your Committee has concluded that the government’s response failed to comply with the order and, accordingly, wishes to draw the attention of the House to what appears to be a breach of its privileges by the government’s refusal to provide documents in the manner ordered by the Committee. Your Committee therefore recommends that an order of the Housedo issue for the unredacted version of all documents produced by the government in response to the July 7, 2020 order of the standing Committee of Finance provided that these documents shall be laid upon the table within one sitting day of the adoption of this order.
Extensive debate ensued with all three opposition parties seemingly supportive of the motion. During the debate the New Democratic Party Finance Critic (MP Julian) introduced an additional motion to be debated at a later meeting which read, in part (subject to confirmation):
- That in light of troubling allegations of misuse of public funds by government during the COVID-19 pandemic in Canada, the House appoints a Special Committee to conduct hearing to examine and review all aspects of the government’s spending in response to the pandemic, including but not limited to: Canada Student Service Grant, Canada emergency commercial rent assistance program and the procurement of personal protective equipment. (…) that the Clerk of the House shall convene and organize a meeting of the said Committee for no later than November 20, 2020; (…) that the Prime Minister, the Deputy Prime Minister, the Minister of Health and other Ministers and senior officials be ordered to appear as witnesses from time to time as the committee sees fit; and l) that the committee report no later than February 15, 2021.
Vigorous debate continued well past the committee’s original two-hour meeting time. The committee temporarily suspended proceedings 6:34 PM in order to consider the procedural admissibility of the CPC motion. The CPC strongly opposed the suspension, vowing to vote against motions to adjourn until a vote was held on the CPC motion. The committee proceedings remain suspended as at 9:30 PM.
Extra material
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Appearance at the Standing Committee on Finance - November 24, 2020 - Speaking Points
Cabinet confidence exclusions to public disclosures
The Committee invited me today to discuss Cabinet confidence exclusions to public disclosures.
The Committee’s request is further to the Government’s responses to a series of motions for the production of documents concerning the Canada Student Service Grant (CSSG) and WE Charity.
I’m prepared to speak generally to Cabinet confidence exclusions; though, I’d like to begin by giving an account of the treatment of Cabinet confidences back in June, when the Government prepared its response to the Committee’s first motion for the production of documents.
The treatment of Cabinet confidences in response to the Committee’s July motion for the production of documents
Once the Committee adopted its motion on July 7, the Government began the considerable task of collecting responsive documents.
- All departments undertook their own searches.
- A very small number of the responsive documents were Cabinet documents. Others, again in small number, were documents that contained Cabinet confidences.
- With respect to these Cabinet confidences, the Privy Council Office provided guidance to the other departments to assist them in properly responding to the Committee’s motion.
- Each department then applied redactions, or not, to its own documents.
As Committee members will recall, prior to August 8, which was the date set by the Committee for the production of documents, the Prime Minister, the Minister of Diversity and Inclusion and Youth, the then-Finance Minister and other Ministers made a number of public statements both in the media and in Parliamentary Committee about the Canada Student Service Grant and WE Charity.
- This included statements about Cabinet deliberations.
[ * ]
And, as I indicated in my own testimony before this Committee on July 21, we undertook to take an approach that was as expansive as possible in responding to the Committee’s motion for documents.
As the Clerk of the Privy Council, I am the custodian of Cabinet confidences. I directed that a principled approach be taken to the treatment of the Cabinet confidences in this case to ensure a non-selective application of the protection of Cabinet confidentiality.
Much information that would normally constitute Cabinet confidences was provided to the Committee.
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Cabinet documents were provided to the Committee, such as:
- The proposal to Cabinet on the Canada Student Service Grant;
- The Funding Note;
- Annotated Cabinet Agenda; and
- The Records of Cabinet decisions on the Canada Student Service Grant.
Cabinet confidences located in other documents were also provided to the Committee.
[ * ]
What remained protected were Cabinet confidences that were not related to the subject matter of the Committee’s request.
- For example, other, unrelated items brought before Cabinet for consideration as they appeared in an Annotated Cabinet Agenda or a Record of Cabinet Decisions were protected.
Also protected – and I must stress that this accounted for a minute amount of information – were the individual views of the Ministers who had not publicly spoken about the CSSG.
[ * ]
The result
As a result, very little information was in fact protected as a Cabinet confidence in response to the Committee motion for the production of documents concerning the CSSG and WE Charity.
- Our internal rough estimates indicate that less than 2.5% of all the information provided to the Committee was redacted on the basis that it was not relevant to the motion.
- This figure includes the Cabinet confidences unrelated to the subject matter of the motion.
- Less than 1% of the information provided to the Committee was redacted because of Cabinet confidentiality.
Note:
August media reports had indicated that about 25% of the content of the Committee’s package was redacted.
Recently, the Conservative Finance Critic (Pierre Poilièvre) said that Cabinet confidences accounted for 46% of the redactions.
I believe it bears mentioning that Cabinet confidences were to be excluded from the production effort under the terms of the Committee’s July 7 motion.
This is in keeping with the House of Commons’ long-standing practice of respecting the confidentiality of Cabinet deliberations and decision-making.
The principles underlying the protection of Cabinet confidentiality
I was asked to discuss, generally, the Cabinet confidence exclusions to public disclosure.
I believe that having a good grasp of the fundamental principles underlying Cabinet confidentiality helps to explain the very real need to protect Cabinet confidences.
As you know, democracies similar to ours have long recognized the need to safeguard the confidentiality of what is said at Cabinet, and the documents prepared for those discussions.
The reasons are obvious. The process of governance in a Cabinet-style democracy works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly; free to discuss all aspects of the problems that come before them and to express all manner of views.
- Confidentiality ensures candour in Cabinet discussions, and full and frank exchange among its members.
Deliberations among ministers of the Crown and the documents that reflect the content of those deliberations are protected by the constitutional convention of Cabinet confidentiality.
- It performs a vital role in our Cabinet-style, democratic system of responsible government.
As a matter of responsible government, Cabinet is openly and collectively accountable to Parliament for the decisions it makes during the time its ministry governs.
The collective decision-making of ministers in Cabinet is a process designed to ensure that the ministry speaks with one voice. If ministers are to make decisions collectively, the privacy of their opinions and views in developing government policy must be protected. Otherwise, the collective responsibility of ministers to Parliament, which is essential to Cabinet government, would be difficult to maintain and ultimately, undermined.
Along with other constitutional conventions, Cabinet confidentiality also serves to uphold the constitutional principle of the separation of powers between the three branches of the state. In doing so, it protects the integrity of our constitutional structure.
Canadian constitutional law has long acknowledged that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state.
- Although there are limited areas of overlap, each branch plays a fundamentally distinct role.
In a recent unanimous decision, the Supreme Court of Canada reasserted that each branch must be able to perform its constitutionally-assigned functions, without undue interference by the others.
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Several doctrines work to prevent undue interference by one branch onto another. This includes:
- The secrecy afforded to judicial deliberations; and
- The recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies.
In August, the Supreme Court reaffirmed that the Executive, too, benefits from a degree of protection against undue interference.
- The Court specified that the deliberations among ministers of the Crown and the records supporting and reflecting those deliberations are protected by the constitutional convention of Cabinet confidentiality.
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Of course, the constitutional convention protecting the confidentiality of Cabinet deliberations does not exist just for the Cabinet of the day.
- It exists for all Cabinets: for those that came before it and for those Cabinets that will come after it.
- The constitutional convention and the protection it affords is for the benefit of our system of democratic governance.
Recognizing this importance, Parliament resolved that access to Cabinet confidences is extraordinary.
- Parliament chose to exclude Cabinet confidences from a right of access under the Access to Information Act and the Privacy Act.
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- It did not grant to its agents of Parliament, a statutory right of access to Cabinet confidences.
[ * ]
- Nor, as a matter of federal law, did Parliament allow our courts access to Cabinet confidences.
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The Committee’s July 7 motion stipulated that Cabinet confidences were to be excluded from the production of documents.
This is in keeping with the House of Commons’ long-standing practice of respecting the confidentiality of Cabinet decision-making.
- As was stated by the former Speaker of the House of Commons, the Honourable Roland Mitchener, on November 6, 1957, the “decision of the government is one and indivisible. Inquiry into how it is arrived at and particularly, inquiry into the cabinet process, is not permitted in the house”.
[ * ]
- It is also how the Supreme Court understands the practice of the House of Commons, as noted in the seminal decision of Babcock.
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The Prime Minister and members of Cabinet appeared before committees of this House to provide answers to questions about its decisions on the CSSG.
The Prime Minister and this Cabinet chose to make public its confidences on the CSSG because of the questions raised about the delivery of the program.
- This is a recognized exception in law to maintaining Cabinet confidentiality.
[ * ]
Again, as the Clerk of the Privy Council and custodian of Cabinet confidences, I directed that a principled approach was taken to the treatment of the Cabinet confidences in this case to ensure a non-selective application of the protection of Cabinet confidentiality.
As a result, and in keeping with the public disclosures made by members of Cabinet, considerable information on the CSSG that would have otherwise constituted Cabinet confidences was provided to the Committee.
I would be pleased to take any of your questions.
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