INTRODUCTION
1.1 This report provides the findings, conclusions and recommendations of the Subcommittee on Matters Related to the Review of the Office of the Privacy Commissioner, established by the Standing Committee on Government Operations and Estimates in October of this year.
1.1 This report provides the findings, conclusions and recommendations of the Subcommittee on Matters Related to the Review of the Office of the Privacy Commissioner, established by the Standing Committee on Government Operations and Estimates in October of this year.
1.2 The Subcommittee was established in response to the following commitment, made in the fifth report of the Standing Committee on Government Operations and Estimates entitled Matters Relating to the Office of the Privacy Commissioner, and tabled before the Clerk of the House in June 2003:
Regarding possible contempts of Parliament: the Committee remains extremely concerned about the possibility that Mr. Radwanski and certain employees in the OPC [Office of the Privacy Commissioner] are in contempt of Parliament as a result of their provision of deliberately misleading testimony during our hearings. This is an extremely serious matter, and will be pursued by the Committee in the fall, in a study that will include a review of the adequacy of processes relating to the testimony before parliamentary committees and of all restrictions and obligations applying to public servants in relation to Parliament.1
1.3 The anticipated shortening of the fall session has precluded exploration of some elements of the study agenda envisioned last spring. However, members of the Committee believe that it is necessary to present a report before Parliament rises, in order to bring closure to immediate concerns relating to the contributions of several individuals to the hearings that resulted in the Committee’s fifth report. The Subcommittee has given close attention to the central issue placed before it: the conduct of certain witnesses during the June hearings. As part of this process, follow-up contact was made with the witnesses whose conduct is the subject of this report. They were advised of the willingness of Subcommittee members to hear any further testimony they might wish to provide, but did not avail themselves of this opportunity.
BACKGROUND
1.4 The concern about possible contempts that Committee members expressed in their fifth report originated during the testimony of the Privacy Commissioner on June 9 and June 13, 2003 (in camera); of witnesses from the OPC on June 12 (in camera) and June 17, 2003 (in camera); and of witnesses from the Office of the Information Commissioner who were included in the June 12 hearing because they had knowledge of matters relating to the OPC, and to claims concerning privacy that had been made by the Privacy Commissioner. Testimony received from these witnesses was inconsistent concerning several matters of central interest to the Committee, raising the possibility that some of the witnesses may have knowingly misled the Committee during these hearings.
1.5 The need to further consider the testimony of some witnesses, and to define this study as an inquiry into possible contempts of Parliament, reflects a longstanding procedural tradition that has established a class of offences that are, essentially, attacks upon Parliament. These offences, which have come to be termed “contempts of Parliament”, are serious offences for two closely related reasons. First, they directly threaten the effectiveness of Parliament itself, by undermining its performance of central roles in considering legislation and holding governments accountable for their actions. Second, in undermining the effectiveness of Parliament, these offences represent an assault upon the democratic process itself, and when they occur in Canada they directly threaten the interests of every Canadian citizen or resident of this country. Similarly, all courts and most administrative tribunals have powers and mechanisms to protect the integrity of their own processes and the evidence they receive.
1.6 The need for parliamentary institutions to be able to protect themselves against acts which could undermine their effectiveness is reflected in the fact that each House of Parliament retains the authority to judge whether conduct amounts to a contempt. This study is a contribution to that work, and identifies issues that members of the Standing Committee on Government Operations and Estimates believe need to be given immediate attention by the House.
A. The Concept
1.7 According to Marleau and Montpetit — authors of the definitive contemporary work on parliamentary procedure in Canada — the concept of contempt applies broadly to:
Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed… Contempt may be an act or omission; it does not have to obstruct or impede the House or a Member, it merely has to have the tendency to produce such results.2
1.8 The concept of contempt is open-ended, allowing for the possibility that unforeseen threats to the effectiveness of Parliament may occur, and may have to be remedied by Parliament. However, within the lengthy tradition of parliamentary procedure, a series of relatively specific actions have come to be recognized as contempts. Derek Lee, one of the co-chairs of this subcommittee and the author of a specialized study of Parliament’s capacity to send for persons, papers and records, cites the following list of actions developed by the eminent British procedural authority Erskine May:
| (a) | refusing to be sworn or take upon themselves some corresponding obligation to speak the truth; |
| (b) | refusing to answer questions; |
| (c) | refusing to produce documents in their possession, or destroying documents in their possession which have been sent for; |
| (e) | giving false evidence; |
| (f) | willfully suppressing the truth; |
| (g) | persistently misleading a committee; |
| (h) | trifling with a committee; |
| (k) | appearing in a state of intoxication.3 |
1.9 Allegations of contempt arise from time to time in all parliaments, and decisions are made about individual cases. Much less frequently, the concept of contempt is reassessed, in the light of accumulating precedents. The most recent major study, by parliamentarians, of the concept of contempt was undertaken in the United Kingdom by the Standing Joint Committee on Parliamentary Privilege in 1999.4 The conclusions of this study are consistent with the definitions of contempt discussed above, indicating that a contempt can comprise:
any conduct (including words) which improperly interferes, or is intended to interfere, with the performance by either House of its functions, or the performance by a member or officer of the House of his duties as a member or officer.5
1.10 That committee also observed that the categories of conduct that may constitute a contempt are not closed. However, it provided a list of types of contempt that have come to be generally recognized. The list is more extensive than the earlier list developed by Erskine May, but is clearly consistent with previous lists. The types of conduct listed are:
| — | interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee; |
| — | assaulting, threatening, obstructing or intimidating a member or officer of the House in the discharge of the member’s or officer’s duty; |
| — | deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition); |
| — | deliberately publishing a false or misleading report of the proceedings of a House or a committee; |
| — | removing, without authority, papers belonging to the House; |
| — | falsifying or altering any papers belonging to the House or formally submitted to a committee of the House; |
| — | deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee; |
| — | without reasonable excuse, failing to attend before the House or a committee after being summoned to do so; |
| — | without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee; |
| — | without reasonable excuse, disobeying a lawful order of the House or a committee; |
| — | interfering with or obstructing a person who is carrying out a lawful order of the House or a committee; |
| — | bribing or attempting to bribe a member to influence the member’s conduct in respect of proceedings of the House or a committee; |
| — | intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee; |
| — | bribing or attempting to bribe a witness; |
| — | assaulting, threatening or disadvantaging a member, or a former member, on account of the member’s conduct in Parliament; |
| — | divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House. |
Additionally, in the case of members:
| — | accepting a bribe intended to influence a member’s conduct in respect of proceedings of the House or a committee; |
| — | acting in breach of any orders of the House; |
| — | failing to fulfil any requirement of the House, as declared in a code of conduct or otherwise, relating to the possession, declaration, or registration of financial interests or participation in debate or other proceedings.6 |
1.11 The central importance of the integrity and completeness of the information provided to Parliament, either by witnesses or by its own members, is strongly reflected in the content of both the list developed by the 1999 committee, and the earlier list developed by Erskine May. This is a consequence of the critical role of information in the processes of deliberation and debate that are fundamental to the work of Parliament, and to the effectiveness of its contribution to the democratic process.
B. Key Criteria
1.12 The four types of conduct, on the U.K. committee’s list, that most clearly reflect the importance of accurate information to Parliament’s work are also the four that are directly relevant to the issues that have been examined by this Subcommittee. In considering the following findings and recommendations concerning the behaviour of certain witnesses who appeared before the Standing Committee on Government Operations and Estimates during its June 2003 hearings on the conduct of the previous Privacy Commissioner, Subcommittee members believe that the House of Commons will find the following criteria to be of central relevance:
| 1. | Did the individual deliberately attempt to mislead the House or a committee (by way of statement, evidence, or petition)? |
| 2. | Did the individual falsify or alter, or cause to be falsified or altered, any papers belonging to the House or formally submitted to a committee of the House? |
| 3. | Did the individual deliberately alter, suppress, conceal or destroy a paper required to be produced for the House or a committee? |
| 4. | Did the individual, without reasonable excuse, fail to attend before the House or a committee after being summoned to do so? |
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
1.13 During the June 2003 hearings, the Committee heard detailed statements from a person who had originally brought concerns about practices at the Privacy Commission to the attention of members, in the manner detailed in the Committee’s fifth report.
1.14 We also heard testimony from other Office of the Privacy Commissioner (OPC) employees who were in a position to corroborate the statements of the person just mentioned on essential points, and did so. In certain cases, these individuals appeared before the Committee voluntarily. The consistency among voluntary corroborating witnesses and others who appeared solely because the Committee had requested their appearance, and the availability of corroborating physical evidence on certain critical matters, were important factors in convincing Committee members of the accuracy of the account of events provided by the person who had initially raised concerns about practices at the Privacy Commission.
1.15 Several key conclusions emerging from this testimony, and presented in detail in the Committee’s fifth report, were contradicted by individual witnesses. The conclusions were:
| 1. | (a) | A letter, originally sent by the previous Privacy Commissioner to the Deputy Minister of Justice on August 2, 2002, was reprinted with one of the original paragraphs removed, and then date stamped with the August 2, 2002 date of the original. This was done in response to direction from Mr. Radwanski, then-Privacy Commissioner. |
| | (b) | The falsified letter was included in a package of materials provided to the Committee covered by a letter signed by the Executive Director, Mr. Julien Deslisle, and dated March 21, 2003. |
| | (c) | The cover letter did not indicate that the falsified letter had been altered, but described it simply as a “Copy of a letter of August 2, 2002, (Radwanski-Rosenberg) concerning the report of the Access to Information Review Task Force.” |
| | (d) | Concerns were expressed by several individuals to Mr. Radwanski about the provision to the Committee of an altered letter, and at least one individual suggested that the letter be used as the basis for a briefing note that could be sent to the Committee. The concerns, and the briefing note option, were rejected by Mr. Radwanski. |
| 2. | The March 21, 2003 package of materials also included a set of expenses claim forms, in response to a request initially made by Mr. John Bryden, M.P., at a March 18, 2003, meeting of the Committee. The letter described these as “copies of his Expenses Claim Forms from April 1, 2001 to March 18, 2003.” Names on the expenses claim forms originally submitted by the Privacy Commissioner had been blacked out. Copies of the forms, obtained subsequently, without the names blacked out indicated expenses had frequently been claimed in relation to lunch meetings between Mr. Radwanski and Ms. Donna Vallières, Director General of Strategic Policy and Communications. Furthermore, the forms were extensively vetted before being included in the packages provided to the Committee, and information on four claim forms was concealed using white-out material. These practices responded to general direction from Mr. Radwanski. At least one instance of whiting out — relating to references to Honolulu stop-overs on a trip to New Zealand — was done in response to explicit direction from Mr. Radwanski. |
| 3. | Financial management and staffing practices at the Privacy Commission required specific investigation by the Auditor General and the Public Service Commission, to get to the bottom of wide-ranging allegations made before the Committee. One such allegation was that an atmosphere of fear and intimidation prevailed at the OPC, illustrated by claims that at a management meeting that occurred during the June investigation by the Committee, Mr. Radwanski had made statements to the effect that if he discovered the identity of the “rat,” that person’s public service career would be over. |