Squeeki-leaks Exclusive: Was Parliamentary Privilege Violated In The Border File?

“Michael Ignatieff saying the controversy will shake confidence in the Prime Minister’s abilities. “This is raising fundamental questions about whether Stephen Harper can be trusted with power,” the Liberal Leader said in Hamilton.” [Carson affair] (Daniel Leblanc and Gloria Galloway Globe and Mail 17, 2011)

New information has come to light as a result of an investigation by the Windsor Square that may well give rise to the possibility of another Contempt hearing for the Harper Government. It is Windsor-related as well and of course involves the border file!

In my opinion, the facts as disclosed in the following documentation on their face give rise to a prima facie question of privilege such that that a Parliamentary Committee may have to investigate the Government’s actions after the introduction of Bill C-3, the International Bridges and Tunnels Act.

The documents are posted below and on “Squeeki-leaks.”

The documents are an exchange between the Bridge Company and the Office of the Minister of Justice. The Bridge Company sought the Government’s permission to reveal certain information during the  Bill C-3 hearings arising out of the settlement of litigation between the Bridge Company and Canada under the Foreign Investment Review Act. That litigation lasted for about a decade. Permission was needed because of a confidentiality clause in the Settlement Agreement. The permission was not granted.

As you will see on reading the materials, the obvious questions that arise are:

 Did the Government of Canada withhold relevant information from Parliament during the hearings and debate over the International Bridges and Tunnels Act by their refusal to grant the Bridge Company permission to disclose information?

 Did Parliament obtain “every possible information on public questions” to which it was entitled? [Language of Speaker Milliken of the House of Commons]

 Did the representatives of Transport Canada, including the Minister, who attended the Parliamentary hearings in support of that Act answer the questions asked of them in a completely forthright manner both at the hearings and while the Bill was debated in Parliament before passage?

 Was Parliament unable to carry out its “undoubted role in holding the government to account?” [Language of Speaker Milliken of the House of Commons]

 Which Senior Ministers were involved in the decision making and what was the role of the Prime Minister since it appears that he is in charge of the border file involving the Ambassador Bridge Company?

Here are the relevant parts of the key documents:

September 5, 2006

“We believe this agreement may be relevant to the ongoing discussions on Bill C-3 which is currently before the Senate.

Because of the confidentiality clause in the Agreement, we are asking for a confidential meeting to discuss and hopefully resolve the issues before us.”

November 1, 2006

“Clearly we have not discussed this issue in detail with officials from the Department of Transport, due to the confidentiality cause of the binding settlement agreement. If we do not hear from you by November 8, 2006, we will understand Mr. Stairs’s letter of October 23, 2006, to be a waiver to this bar and that we are free to discuss this issue with officials, members of the Senate and the House and media when we appear on Bill C3.”

November 8, 2006

“My letter was never intended as and does not in any way constitute consent on the part of the Government of Canada to relieve any party to the Agreement in question of its obligation to maintain the terms of confidentiality, and should not, in any way, be construed as such.

The disclosure of any terms and conditions of the Agreement by any party without the express consent of the Government of Canada would therefore be a breach of the Agreement.”

November 21, 2006

“Currently your Government has legislation before the Senate that may contravene the intent of this Agreement. We understand that your department is responsible for the ongoing legal matters of the Government of Canada.”

November 29, 2006

“In light of the above information, neither the Minister of Justice nor his officials are in a position to meet with you on this matter.”

Note the comment in the November 8 letter that deals with “any party.” Justice Department must be saying that even the Government, a “party” to the Agreement, cannot reveal any information even though the Ambassador Bridge Company would have been prepared to waive its rights obviously and would have allowed them to do so. Query whether this was a neat way to maintain Governmental secrecy for all Departments, especially with the threat of a breach of Agreement!

Howwver, this is not the first time that there has been an issue with a Government Cabinet Minister in the border file. Check out my BLOGs on Minister Van Loan who also acted for the Ambassador Bridge Company as their lawyer before he became an MP.

Check here and here  and here

I believe that these new documents reveal a situation that may be worse than the two privilege matters ruled upon by the Speaker of the House of Commons in Ottawa recently. It may be worse because the facts were not out in the public. Moreover, the Ministers involved could be some of the Senior Members of the Government, perhaps  even  including the Prime Minister or the  PMO.

We learned just last week the shocking news that Prime Minister Stephen Harper’s Government is effectively on trial for contempt of Parliament:

“[House Speaker] Milliken ruled that the minority Conservatives breached parliamentary privilege by refusing to fully disclose full cost estimates for its justice agenda, corporate tax cuts, and plans to purchase stealth fighter jets.

He also ruled that International Co-operation Minister Bev Oda breached parliamentary privilege by misleading MPs about an altered government document.

Wednesday was the first of three days of hearings by the committee into whether the Harper government and Oda personally are in contempt of Parliament.” (CTV.ca News Staff Mar. 16 2011)

Refusal to disclose information and misleading information. Remarkably close to what four Michigan Legislators alleged about MDOT in the border file but for which the Michigan Attorney General has not yet announced what he is going to do about it.

“Representative David Agema today called for the State of Michigan’s Attorney General’s office to begin an immediate and comprehensive investigation on the Michigan Department of Transportation’s (MDOT) fraudulent misrepresentations and withholding of material facts during testimony on the proposed Detroit International River Crossing (DRIC) project.”

For  background, this matter really deals with the International Bridges and Tunnels Act. It was a Government Bill that was directed as far as I am concerned against one company: the Ambassador Bridge Company. It was a crucial step in Canada’s strategy dealing with the border and was represented as a matter that could be dealt with easily!

“Senator Mercer: I am a little conflicted here because the bill is introduced by a Conservative government who is pro-business. I am a left-wing Liberal, and I seem to find myself on the side of defending the private enterprise here, which is okay. I find it an interesting juxtaposition.

I am confused. This has become a much more complex and acrimonious process from when I first read the bill…

Senator Dawson: At the beginning, when this bill came in we were led to believe, and I am not saying there was any bad faith, it was going to be a bill that would pass easily…

All of a sudden we understand that there is an adverse effect for one of the strong participants in the bill…

Senator Munson: I wish to echo the sentiments of Senator Dawson and Senator Mercer. This seemed to be slam dunk before”

If you think I am being overly dramatic, then remember this Statement from Transport Minister Strahl when introducing Regulations to the Act recently that impose financial penalties:

“The Honourable Chuck Strahl, Minister of Transport, Infrastructure and Communities, today announced proposed Administrative Monetary Penalties Regulations (AMP Regulations) to establish an efficient and inclusive method outside of the courts to address violations under the International Bridges and Tunnels Act.

The proposed AMP Regulations would set up a ticketing system by creating fines for infractions under the Act and Regulations. For example, penalties could be imposed for the construction of an international bridge without government approval or if a corporate owner fails to submit an inspection report to the Minister. These penalties would encourage people to comply, while offering a quick and effective enforcement tool for most offences. Penalties would range from a maximum of $5,000 per day for individuals to a maximum of $25,000 per day for corporations. Current enforcement tools include issuing Ministerial Orders and initiating criminal proceedings.”

Gee, I wonder to whom the Minister is referring.

That Bill clearly had to pass for the Government to be able to put pressure on the Ambassador Bridge owner to sell out. It was also another impediment put in their way to build a second span and to pretend that DRIC (now known as NITC or the New International Trade Crossing) could move forward.

The Bridge Company representatives appeared as witnesses in both the House and Senate hearings into the Bill to express their opposition to it. They wanted to provide assistance to the Members that would help them explain their opposition to the Bill as drafted. In order to do so, certain information needed to be supplied. They asked the Government for permission to do so and their request was denied, not only denied, they were threatened with a breach of the Agreement if they disclosed it!

How could the Bridge Company argue a position with one hand tied behind their back? How could Parliament make an informed judgement about whether the Bill should be passed or amended when information was being kept from them that might have proven to be decisive?

The inference which I must draw based on the documentation is that the Government was very concerned that what the Bridge Company might disclose could have thwarted their strategy by preventing the passage of the Bill as drafted.

Even if the information that the Bridge Company wanted to disclose would not have changed a single vote, that is not the issue now. The concern is preventing a Party impacted by proposed legislation from being able to argue its case fully so that Parliament can make an informed decision in the best interest of the Canadian people.

Here is the perfect example of what this failure to provide permission caused. In spite of what happened, the Senate in its Observations was quite sympathetic to the Bridge Company saying:

“On the question of the federal government’s potential involvement in future international crossing projects, your Committee heard suggestions that the provisions in the bill that allow the Minister of Transport to recommend to the Governor in Council whether or not to approve a project would lead to a substantial conflict of interest for the Minister. On this point, officials noted that Transport Canada currently does not own or operate a single international bridge or tunnel. The existing federal structures belong to Crown corporations, which are autonomous even if the Minister of Transport is responsible for them. To quote an official, “the Minister has absolutely no authority over the day-to-day activities of these organizations, including those dealing with safety and security.” Therefore, given the autonomous ownership and operational arrangements established for existing federal structures, your Committee is confident that the Minister of Transport will not be in a position of conflict of interest in the future. However, the Minister of Transport should be particularly sensitive to any situation where the federal government is in a situation where there is an appearance of conflict, especially when the interests of a private enterprise are at stake.”

Imagine if the Bridge Company could have revealed all the information they wanted but were prevented from doing so. Perhaps the Bill might never have passed or might have been amended so as not to punish the Bridge Company.

Please read excerpts from what the Speaker of the House of Commons said recently with respect to the question of privilege:

“Thus, the power of committees of the House to order papers is indistinguishable from that of the House.

With these well-established privileges and principles in mind, and in order to assess properly whether or not the order flowing from the Standing Committee on Finance has been complied with, I undertook a review of what was tabled. The Chair was helped in this by the committee’s order, which was quite explicit in the information it sought, even going so far as to list the bills for which information was required. While the Chair does not judge the quality of documents tabled in the House, it is clear from a cursory examination of the material tabled that, on its face, it does not provide all the information ordered by the committee.

While the Chair finds this in and of itself unsettling, what is of greater concern is the absence of an explanation for the omissions. At the very least, based on the indisputable right of the committee to order these documents, this is required. Only then can the House determine whether the reasons given are sufficient or satisfactory. The need to provide reasons to the House is clear. On page 281 of Bourinot’s Parliamentary Procedure and Practice in the Dominion of Canada, fourth edition, it states:

But is must be remembered that under all circumstances it is for the house to consider whether the reasons given for refusing the information are sufficient. The right of Parliament to obtain every possible information on public questions is undoubted, and the circumstances must be exceptional, and the reasons very cogent, when it cannot be at once laid before the houses.”

The Chair has reviewed the debates on this question, and while initially cabinet confidence was cited as a reason not to produce any of the documents, despite this, the government saw fit to partially comply with the committee order and a tabling of some material did eventually take place. Since then, no further reasons have been given as to why the balance of the documents should not or will not be tabled.

It may be that valid reasons exist. That is not for the Chair to judge. A committee empowered to investigate the matter might, but the Chair is ill-equipped to do so. However, there is no doubt that an order to produce documents is not being fully complied with, and this is a serious matter that goes to the heart of the House’s undoubted role in holding the government to account.

For these reasons, the Chair finds that there are sufficient grounds for finding a prima facie question of privilege in this matter.”

On the allegedly misleading statements made by the Minister of International Cooperation, the Speaker said:

“The member for Scarborough—Guildwood and other members have argued that the minister has made statements in committee that are different from those made in the House or provided to the House in written form. Indeed, these members have argued that the material available shows that contradictory information has been provided. As a result, they argue, this demonstrates that the minister has deliberately misled the House and that as such, a prima facie case of privilege exists…

The crux of the matter, it seems to me, is this: as the committee has reported, when asked who inserted the word “not” in the assessment of the KAIROS funding application, in testimony the minister twice replied that she did not know. In a February 14 statement to the House, while she did not indicate that she knew who inserted the word “not”, the minister addressed this matter by stating that the “not” was inserted at her direction. At the very least, it can be said that this has caused confusion. The minister has acknowledged this, and has characterized her own handling of the matter as “unfortunate”. Yet as is evident from hearing the various interventions that have been made since then, the confusion persists. As the member for Scarborough—Rouge River told the House, this “has confused me. It has confused Parliament. It has confused us in our exercise of holding the government to account, whether it is the Privy Council, whether it is the minister, whether it is public officials; we cannot do our job when there is that type of confusion”.

The Chair has faced a somewhat analogous situation before. In January 2002 the Minister of National Defence had made statements in the House regarding Afghan detainees that ultimately also caused confusion and led to a question of privilege being raised. In that case, two versions of events had been presented to the House. In that case, as in this one, the minister assured the House that there was no intention to mislead. At that time, in finding a prima facie case, I stated at page 8581 of the Debates of February 1, 2002, that I was “prepared as I must be to accept the minister’s assertion that he had no intention to mislead the House. Nevertheless this remains a very difficult situation”. I then went on to conclude that “the situation before us where the House is left with two versions of events is one that merits further consideration by an appropriate committee, if only to clear the air”.

In keeping with this fairly recent precedent, and mindful of the ruling by Mr. Speaker Jerome cited earlier, the Chair is of the view that sufficient doubt exists to warrant a finding of prima facie privilege in this case.”

Based on the documentation as I said at the outset, in my opinion “there are sufficient grounds for finding a prima facie question of privilege in this matter.”

I do have a concern about a mere BLOGMeister disclosing these documents. I wonder whether the traditional media will jump on this story and give it the prominence it deserves or will they bury it as so many Bridge Company stories have been hidden. Moreover, will there be a Member of Parliament who will have the guts to raise it now as another issue for which the Government must be called upon to answer!

Oh, in case you forgot, Minister Van Loan was Leader of the Government in the House of Commons when Bill C-3—the International Bridges and Tunnels Act— was being debated, a Bill targeted at and designed to hurt the Ambassador Bridge Company, his former client!