HAFF Committee Meeting

STANDING COMMITTEE ON PROCEDURE AND HOUSE AFFAIRS

COMITÉ PERMANENT DE LA PROCÉDURE ET DES AFFAIRES DE LA CHAMBRE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 1, 2001

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[English]

The Chair (Mr. Peter Adams (Peterborough, Lib.)): Colleagues, we will begin the meeting.

I will introduce our witnesses in a moment. The order of the day is the question of privilege raised on October 15, 2001, by the member for West Vancouver—Sunshine Coast regarding the matter of the media receiving information on the contents of Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other acts, and to enact measures respecting the registration of charities in order to combat terrorism, before members of Parliament.

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Before we proceed to that item, I wonder if we could, given that we're still waiting for one party, deal with the other business item on our agenda, and that's pursuant to Standing Orders 104 and 107 in relation to the membership of the liaison committee. You'll recall I spoke of this the last time. We have a draft report. The parties have submitted associate members to the liaison committee.

I would ask that someone move the motion that is indicated there.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance): I so move.

(Motion agreed to)

The Chair: If I could, then, I would now introduce our witnesses on the main order of the day. It's a pleasure to have here Richard Fadden, who is the deputy clerk, counsel, and security and intelligence coordinator of the Privy Council Office, and also Oonagh Fitzgerald, assistant secretary to the cabinet, legislation and house planning counsel. Did I pronounce that correctly, Oonagh?

Ms. Oonagh Fitzgerald (Assistant Secretary to Cabinet, Legislation and House Planning Counsel): Yes. Thank you.

The Chair: We welcome you both.

Mr. Fadden, we're in your hands. I understand you have a statement. Proceed with it, and then we'll consider the questions following it.

Mr. Richard Fadden (Deputy Clerk, Counsel, and Security and Intelligence Coordinator, Privy Council Office): Thank you, Mr. Chairman. I'd like to thank the committee for the opportunity to appear before you to discuss this very important matter.

I'd like to start by reaffirming the policy of the government on pre-introduction briefings, to talk a little bit about the public statements made by the minister before the article by Mr. Fife, describe the ongoing administrative investigation that I understand Minister McLellan told you about, and then draw a number of conclusions with which I hope you will agree, and then be happy to answer some questions.

Members will be aware that Ministers Boudria and McLellan have both outlined the government's ongoing position on protecting legislation until it is introduced in Parliament. This position is consistent with this committee's own report, which was tabled in May of this year. In all cases, the government legislation is protected until it is introduced into a house of Parliament. In exceptional cases, such as with complex or technical legislation, pre-introduction briefings may play a role. When such briefings are offered to the media, they must also be offered to Parliament.

This position was outlined in the government's response to the committee's report of May 9, which was again tabled by Minister Boudria on June 8. As requested by the committee, and as stated in that government's response, Mr. Boudria sent this committee a copy of the Guide to the Making of Federal Acts and Regulations. The guide was amended to include the above policy on pre-introduction briefings. The new guide is available to all ministers in federal departments.

[Translation]

In addition to these steps, I advised all the deputy ministers of the government's policy regarding briefings before the tabling of bills. In turn, senior officials from the Privy Council Office and the Prime Minister's Office informed their directors general of communications in the department and in the ministers' offices. On June 8 of this year, I sent the deputy ministers a memo reiterating the government's position on the confidentiality of bills and briefings before the tabling of a bill.

We also tried to restrict the circulation of information. For example, the people taking part in meetings were often forbidden to leave the room with the material that was being used. Specific measures were also taken to restrict the distribution of copies of the bill and to ensure that these copies were not provided to just anyone, except for operational reasons. In the final analysis, few people had a copy of the bill in their possession.

[English]

Members will be aware that the Prime Minister and ministers have indicated in the House of Commons on numerous occasions since the event of September 11 that the government would have a comprehensive response to the U.S. tragedy, which would includ legislative proposals. On September 18 the Minister of Justice told the House that we are currently completing the ratification process of the remaining two agreements, the Convention for the Suppression of Terrorist Bombings, and the International Convention for the Suppression of Financing of Terrorism.

The Convention for the Suppression of Terrorist Bombings covers new offences relating to the targeting of public places, transportation systems, government or infrastructure facilities with explosives or other lethal devices. It will require states that have ratified the convention to criminalize these offences when committed outside their borders and prosecute or extradite offenders found within their borders.

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The International Convention for the Suppression of Financing of Terrorism is intended to cut terrorists off from the financial support that permits them to continue to operate. The convention requires state parties to make it a crime for a person to provide or collect funds with the knowledge that they might be used in terrorist activities. Our signature on these conventions is a commitment by Canada to move forward to the ratification. “I anticipate”—this is the Minister of Justice speaking—“bringing implementing legislation before Parliament that will allow us to prosecute these offences in Canada”.

On September 18 the Minister of Justice told the House:

Rapidly evolving technologies are being used to shield unlawful activities, including terrorism. Although current provisions of the Criminal Code provide grounds to lawfully intercept communications and to search and seize information and computer systems, new and constantly changing technologies challenge our capacity to do so. We are working to develop better methods to counter the use of information technologies that facilitate and assist terrorist activity.

In addition to these Criminal Code protections, it is my intention to propose amendments to the Official Secrets Act. These will address intelligence-gathering activities by foreign states and terrorist groups that could threaten Canada's essential infrastructures.

The Chair: Mr. Fadden, I'm sorry, I lost track of whose quotation that was.

Mr. Richard Fadden: Still the Minister of Justice.

The Chair: Thank you very much.

Mr. Richard Fadden: To continue:

As well, I am planning to propose amendments to the Canada Evidence Act to better govern the use and protection of information that would be injurious to national security were it disclosed. These amendments would also protect information given to us in confidence by our allies.

The Minister of Justice on September 19 said:

Mr. Speaker, as I have said previously, out of the 12 conventions referred to, Canada has signed, ratified, and implemented 10 of them. There are only two remaining.

As I clearly stated in this House yesterday, we will be bringing forward criminal legislation in the very near future to ensure that we can implement both the convention on terrorist bombing and the convention on the suppression of terrorist financing.

On September 19 the Minister of Justice also told the House:

We have Criminal Code provisions expanded by Bill C-24 that deal with seizure and forfeiture of assets in certain circumstances. We will be working with our allies to ensure that we have all the laws in place necessary to strip terrorist organizations of their lifeblood, which is their money.

On September 19 the Minister of Justice also stated that:

Other countries that have recently passed anti-terrorism bills or are in the process of doing so, such as England or New Zealand, imposed jail terms up to 14 years against anyone convicted of raising money for terrorist purposes.

The minister said that the federal government is looking at these bills in preparation of its own anti-terrorism legislation. She said she will table legislation that would likely allow the government to jail or seize the assets of people who collect funds for terrorists.

On September 21 the Secretary of State for Financial Institutions was asked in the House whether the government would be introducing amendments to the recently enacted anti-money-laundering legislation to combat terrorism, and he replied:

We are considering that at this very moment. We have had discussions with Fintrac on our money-laundering legislation, and we are certainly looking at that measure.

On September 25 the Minister of Justice told the House:

Mr. Speaker, if the hon. member is referring to how we go about implementing the UN Convention on the Suppression of Terrorist Financing, we are considering both a definition for terrorist organizations and the addition of a list of designated organizations that would be defined as terrorist organizations.

On September 26 the Minister of Justice told the House about intended amendments to the Criminal Code:

Mr. Speaker, the hon. member is confusing two things. One is the situation under the United Nations Act dealing specifically with bin Laden and those directly or indirectly associated with bin Laden. We have the legal infrastructure clearly in place to permit the freezing of assets in relation to any organization controlled by bin Laden or associated with him.

However, the Convention on the Suppression of Terrorist Financing goes much further, and that is why we are going to amend the Criminal Code to ensure that we can implement the terms of that convention.

The Chair: I'm crossed. That's the Minister of Justice, and the quotation before that was the Secretary of State for—

Mr. Richard Fadden: Financial Institutions.

The Chair: Thank you very much.

Mr. Richard Fadden: On October 2 the Minister of Foreign Affairs, Mr. Manley, told the House:

The Prime Minister noted yesterday the creation of a new ad hoc committee of ministers on public security and anti-terrorism, which I will chair at his request. The committee has already started its work on developing a strategy to address the immediate challenges facing the government in the area of public security.

We are reviewing policies, legislation, regulations, and programs across the government in order to adjust all aspects of our public security in light of the events of September 11, including to reflect the obligations set out by the United Nations Security Council last week.

[Translation]

On October 2, Minister Boudria confirmed that the government was preparing to table anti-terrorist legislation in the House of Commons very soon so as to harmonize Canadian legislation with the United Nations resolutions, particularly Security Council resolution 1373.

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[English]

On October 2 the federal government introduced regulatory measures outlawing fundraising in support of terrorists identified by the government, freezing the assets of people linked with politically motivated violence, and requiring individuals and banks to report information about suspect money to authorities. On that day the Minister of Justice indicated that most of the new measures are an interim solution and that she hoped very soon to table a full legislative package that proposes banning terrorist fundraising, participation in terrorist groups, and the country's first-ever definition of terrorism.

Justice Minister McLellan announced that her proposed reforms will expand upon and enshrine into law those new regulations:

“We are not talking about banning membership in terrorist organizations”, stressed Ms. McLellan, who instead is proposing criminalization of certain activities of terrorist organizations.

She also plans to give authorities expanded wiretapping powers in fighting terrorism and to modernize the archaic Official Secrets Act.

Media reports on October 2 indicated that the government also seeks to define “terrorist” and to impose heavy penalties on groups that fall within the definition. The justice minister cautioned that this must be done with care. I am quoting Madam McLellan:

What you want is to strike the appropriate balance so you've got a definition that does not restrain law enforcement authorities in terms of action, but at the same time you are not sweeping up the innocent and legitimate, for example student protests on campus.

On October 4 the House leader announced:

On Monday, October 15, we shall have an allotted day. I have consulted with opposition House leaders about a bill we propose to introduce that day and debate on the following day. The bill will introduce measures to implement the United Nations conventions, amend the Criminal Code, the Official Secrets Act, and the Canada Evidence Act, and propose other measures to improve security and protect Canadians. We hope to commence consideration of the bill on...October 16.

Further, the Minister of Justice indicated in question period on September 25:

...the government will take all necessary steps to ratify and implement both the UN convention on terrorist bombing and...on the suppression of terrorist financing.

A journalist reading the text of those two conventions and comparing them to existing Canadian law would likely be able to draw certain inferences about likely legislative measures to implement those conventions.

On October 4 the government House leader indicated in the House that on October 15 we would have an allotted day and seek to amend the United Nations conventions, the Criminal Code, the Official Secrets Act, the Canada Evidence Act, and propose other measures.

If I could turn, Mr. Chairman, to the October 13 news article—

The Chair: Just a little bit slower, if you would.

Mr. Richard Fadden: I'm delighted to do that. I thought I would be boring the committee if I made too many quotations, and I didn't want to do that.

The Chair: I think for the purposes of translation and comprehension it would be useful.

Mr. Richard Fadden: I'm happy to do that, Mr. Chairman.

On Saturday, October 13, an article appeared on the front page of the National Post entitled “New bill to define terrorism: Legislation to land in House on Monday”. I would submit that the article was partially a collection of statements about the various legislative measures intended to be implemented through the anti-terrorism bill and partly a description of comparable existing legislation in the United States and the United Kingdom.

I'd like to first deal with the overall general content of the article. The article contained facts that were in the public domain, having already been announced by ministers in the weeks immediately after the events of September 11. I've already cited many of these for you. The Minister of Justice in her testimony before the committee on October 18 noted that the article contained information that had been in the public domain for weeks. The article also repeated comments made by the Prime Minister and ministers about the expected contents of the bill.

Further, Minister McLellan noted that the article contained information that not only was in the public domain, but also that by its nature should be in the public domain.

I'd like to examine the facts contained in the article point by point.

The fact that a new bill was being prepared to enact new anti-terrorism measures was public knowledge. Several ministers made statements to that effect in the House. In addition, the bill went on the House Order and Notice Paper on October 12. The fact that the bill would be introduced in the House on Monday was public knowledge. That date had previously been announced by the House leader. The description of the existing legislation of the United States and the United Kingdom was public knowledge. The fact that the bill would contain measures to amend the Criminal Code, the Official Secrets Act, and the Canada Evidence Act was also public knowledge. A statement that the bill would amend those statutes was given in the House by Mr. Boudria.

The fact that the bill would contain measures to implement Canada's obligations under the United Nations conventions was public knowledge. The Minister of Justice had indicated on September 25 that the government will take all necessary steps to ratify and implement those conditions.

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Again, a journalist reading the text of those conventions would be able to infer the minimum legislative amendments necessary to implement that convention.

The fact the government had already announced certain new security measures to deal with the threat of terrorism was public knowledge. For example, measures referred to in the article included high-tech fingerprint scanning and bomb-sniffing equipment at airports and new forge-proof identification cards. The article itself pointed out that these measures had already been announced by the government.

The fact that there would be measures taken requiring financial institutions to determine and report to authorities any assets of groups or individuals listed as terrorists was public knowledge. As the article itself points out, the general effect of these measures had already been announced by the government.

I wonder if I could turn, Mr. Chairman, to the administrative review that Madam McLellan had mentioned to the committee was being undertaken by the Privy Council Office.

The National Post article purported to cite senior government officials as sources who have seen drafts of the legislation and senior officials speaking on background. The government has taken this matter very seriously, and Minister McLellan indicated that we would be undertaking a review. She started that review by asking both her exempt and her political staff whether there had been any unauthorized disclosures, and I understand that she indicated to the committee that there had not been.

At the request of the Clerk of the Privy Council, the security operations divisions of the Privy Council Office arranged for a security review of all of the departments that were involved in the drafting and formulation of the legislation to inquire if anyone had spoken to the press. Inquiries were made of persons who had access to pre-introduction copies of Bill C-36 and of other persons who might have been involved in the drafting and formulation of the legislation.

To date, it is our view that 386 persons had access or knowledge of Bill C-36 before it was introduced, and so far 214 individuals—that was as of yesterday afternoon—had been interviewed. We expect that all of the interviews will be completed by the end of this week or at the very beginning of next week.

To date, no evidence has been uncovered linking a specific person to a deliberate or inadvertent disclosure of detailed information on Bill C-36. I'm not suggesting or saying that no one spoke to the media. There are people involved with the bill whose job necessarily involves speaking with the media. However, there's no evidence to date that anyone divulged substantive information that was not already known to be in the public domain.

In conclusion, Mr. Chairman, I'd like to suggest that the information in the National Post article largely repeated comments made in the House or in public speeches by the Prime Minister or ministers. Some of the information in the article related not to the legislative proposals of Canada but rather the United Kingdom or the United States. Some of the information in the article was ascertainable from reading international conventions, which the Minister of Justice had announced would be implemented. Some of the information in the article related to measures previously announced by the government. That information again was publicly available.

There were in fact two factual errors in the article: the number of pages in the bill and the definition of the word “terrorism”.

There are some details in the article quoting identified senior officials that arguably go beyond what had previously been disclosed by ministers. However, this may well have been speculation by the journalist based upon conversations with government officials.

Minister McLellan had indicated that she had been advised that her exempt staff and senior departmental officers have indicated that there were no discussions with the media prior to the introduction of Bill C-36 that provided detailed information on the bill.

Again, shortly after publication of the article PCO initiated an administrative review, and to date we've not uncovered any evidence of inappropriate disclosure by an identifiable government official.

This brings to an end my attempt to recount the objective information that is currently available. I'd like to conclude, however, by pointing out that the National Post article does not refer to many of those aspects of the bill that subsequently have attracted the most attention in Parliament and in the media. I don't consider myself to be an expert on leaks, but usually when something is leaked or somebody writes an article on it, they try to find the most controversial aspects in order to report. This was not the case here. Certainly if an advance copy of the bill had been provided to a journalist, one would expect the article to focus less on the information already in the public domain and more on those issues capable of attracting controversy. In truth, the article did not do that.

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We've tried to explain here that in our view most of the information in the article was already in the public domain based upon statements made in the House by the minister; that a good journalist, as is the case with Mr. Fife, would have been able to extrapolate the few small items that were not already in the public domain; and that our inquiries to date, which are not completed, have not revealed to us yet any suggestion that someone had acted improperly.

I apologize for the length of my statement. I thank you for your patience, and I'd be pleased to try to answer any questions you might have.

The Chair: There's no need to apologize. We're very interested in this subject, so we're very pleased.

I'm going to go to my list in a moment. The list is John Reynolds, Joe Jordan, Bill Blaikie, Geoff Regan, and Cheryl Gallant at the moment. But before I do, I wonder if you and your colleague could explain to us in plain language your roles in the Privy Council Office—we have your titles—and particularly in your case, Mr. Fadden, with respect to security and the House of Commons, if you would.

Mr. Richard Fadden: Yes. I must work on getting my superiors to simplify my titles.

I'm responsible in the Privy Council Office for the Prime Minister's portfolios relations with Parliament. We do legislative affairs, House affairs, Senate affairs. I'm also the senior lawyer in the Privy Council Office, so we provide advice to the portfolio on legal issues. In the context of the matter before you, myself, my colleague, and those of our staff who work on these issues have dealt with Bill C-36 both in the preparatory phase and in its drafting.

As security and intelligence coordinator, I'm responsible to the Prime Minister for coordinating, broadly speaking, the security and intelligence activities of the government. Within PCO I'm responsible for ensuring the safety of the Prime Minister and ministers of the portfolio. I advise on the safety of Parliament. Also, I have been responsible over the years for conducting administrative inquiries relating to leaks of this nature.

I hope that helps.

The Chair: Ms. Fitzgerald.

Ms. Oonagh Fitzgerald: There are basically two aspects to my role. One is as counsel to the Privy Council Office and to the portfolio ministers. In that role, one of the responsibilities is in relation to the protection of cabinet confidences. And secondly, my group provides support to Minister Boudria and Senator Carstairs in the management of parliamentary affairs, including legislation.

The Chair: Thank you very much.

May I ask, have you engaged in a similar investigation before?

Mr. Richard Fadden: Personally I have not. The officers who work with me have.

The Chair: Thank you.

It's John Reynolds, Joe Jordan, Bill Blaikie.

Mr. John Reynolds: Thank you both for being here and for your presentation.

I'd like to ask you if you brought any outside help in, or is it just your regular staff who do this? Also, is there any RCMP involvement to your knowledge in an investigation here?

Mr. Richard Fadden: Mr. Chairman, the initial inquiries made within the Department of Justice were made by justice officials. When the Clerk of the Privy Council, as a result of the interest of this committee, instructed us to conduct an inquiry, we decided that there would be some advantage in bringing in an outside expert. We therefore contracted with Deloitte & Touche, I think a fairly reputable contracting firm. They have assigned a senior member of the firm to operate the inquiry, who in fact is conducting most of the interviews.

As of now, there has been no involvement of the RCMP largely because of a longstanding understanding with the RCMP that they do not become involved unless there are the beginnings of some evidence to suggest that a criminal statute had been violated. So the standard practice would be we would conduct an administrative inquiry, and if we can find something we can give them, then the RCMP would be brought in. But as of yet we haven't had anything of that nature.

Mr. John Reynolds: So your feeling right now is that Mr. Fife, being an experienced journalist, has really put together a story based on public information and that he has thrown in words like “senior government officials say”, “according to sources who've seen drafts of the legislation”, and “a senior official speaking on background” to make it feel as if he has talked to somebody.

Mr. Richard Fadden: I would characterize it slightly differently, Mr. Chairman. I have no doubt that Mr. Fife has spoken to government officials. What I'm suggesting is that in the case of either those who have been authorized to speak to the media—and there are a large number in government—or simply people on background, we have found no evidence that they have revealed to him anything that's not in the public domain. So I don't mean to suggest that Mr. Fife is throwing a cover over the article. I'm simply suggesting that in any discussions that he might have had we have uncovered no evidence that anything untoward was revealed.

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Mr. John Reynolds: The article does say “speaking on background”, “said a senior official”. There are some things.... You're sure the number of pages are wrong. I'll throw that one in. It says here the bill will not name any terrorist organizations, but will set out rules on how a list of such groups can be compiled. One official described the list as an evergreen document.... That really wasn't in the public domain before.

It says that instead of complying to the Charter of Rights and Freedoms, it will mimic the federal anti-gang legislation. I don't think that was in the public domain, and I don't think that's something Mr. Fife could dream up.

Part of the act says that if you're going to give background to the media, you should give it to members of Parliament at the same time. I still believe that didn't happen. I'm just wondering how we get to the bottom of that in this investigation.

Mr. Richard Fadden: It's a fair question. On the issue of relating this bill to the organized crime legislation, you're right, no minister as far as we can ascertain has made a statement to that effect. I would argue that a journalist of Mr. Fife's experience and competence, just pulling together the various components that were public and knowing what was happening on organized crime, could make a link.

One of the decisions I understand Parliament took at the time the organized crime legislation was going through related to whether membership in a gang was going to be criminalized or not. That's one of a variety of issues that was discussed by officials, and I believe will be discussed before the House. Again, in the absence of any evidence to the contrary, I don't think it's an unreasonable conclusion to say that Mr. Fife, being an experienced and well-informed person, could have made the link.

As I said at the beginning, I don't think we can explain every single bit of information in this article by reference to ministerial statements. We do believe, however, that upwards of 90% of them can be, and most of the remainder, if not all of the remainder, can be reasonable extrapolation by a highly experienced journalist.

Mr. John Reynolds: Has anybody in your department contacted Mr. Fife? I would never expect him to give up the names of his sources, but has anyone asked him if he had a source?

Mr. Richard Fadden: We haven't done that. My understanding is that for administrative inquiries of this nature, we complete the part that deals with public servants or officials of ministers' offices first. The administrative inquiry has no jurisdiction to talk to anybody outside of government, broadly defined. We would not do that without coming to a firm conclusion, through the initial part of the administrative inquiry, that it would be warranted.

Mr. John Reynolds: The government House leader suggested this could be considered a breach of the Official Secrets Act. I know you haven't completed your investigation, but out of 386 people, I think you said you've done 244.

The Chair: 214.

Mr. John Reynolds: So unless you find somebody in there, it looks like your report will end up saying just what you've said—that he's a good reporter and came up with some lucky breaks. I just wonder if we're talking about the Official Secrets Act. Is there a stage here when the RCMP might want to look at this?

Mr. Richard Fadden: That's a fair question. That's a matter indeed for the commissioner, in the end. As you know, the RCMP operates independently of the government of the day. The RCMP, however, as a broad practice will not initiate a criminal inquiry unless they have some evidence to suggest there's something there that might lead them to an eventual prosecution.

The individuals who have been working on this in government, both the departmental security officers and our consultants, are quite experienced in these matters. Many are former members of the RCMP. I want to assure you that if we find any evidence that suggests the criminal law has been violated, we will raise the matter with the RCMP. I can only say, quite honestly, right now we've found nothing.

The Chair: I know it's your issue, but—

Mr. John Reynolds: May I ask just one final question?

The Chair: By all means.

Mr. John Reynolds: You haven't found anything, but if there is in fact... You can say the reporter guessed, but there are still a number of other things I haven't gone through yet. Maybe we'll get to them later.

If your people interview these people and nothing's there, is there still a role for the RCMP to play, if this is a violation of the Official Secrets Act outside of government? It's not that I don't respect the lawyers you have working for you or your investigators with their experience, but sometimes it takes an outside group.

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Mr. Richard Fadden: I'm not trying to avoid answering your question. It's a fair question. We'll have to look at the final report, see what it says, judge the reaction of the committee, and judge whether or not there are any very specific instances taken from the article that we cannot explain. If we can find very concrete instances that even somebody like me, you might say, can't explain away, then we'll look at that possibility.

Mr. John Reynolds: Thank you.

The Chair: Thank you, Mr. Reynolds.

Joe Jordan, Bill Blaikie, and Geoff Regan.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Thank you, Mr. Chair.

Mr. Fadden, you said you had been involved in administrative inquiries into leaks of this nature, and I think you further clarified that by saying it was actually the people under you. Have we ever cracked a case like this? Have we ever found the source of a leak, through an administrative inquiry?

Mr. Richard Fadden: I think if you go back a good number of years we have, but it's not an easy thing to do, to be honest, and there haven't been very many.

In practical terms, unless there's a measure of luck involved, administrative inquiries don't have powers of compulsion. People have legal rights. People have rights under the unions. It's very difficult beyond a certain point, although I must say to date everyone we've spoken to—public servant, exempt staff and everybody else—has collaborated.

The main effect of an administrative inquiry like this is it enables us to remind people, in a very serious way, that this is a serious issue and we have to be careful.

Mr. Joe Jordan: But this whole process was front-ended with that message too, wasn't it?

Mr. Richard Fadden: It was indeed.

Mr. Joe Jordan: Your presentation was very helpful, although I would have appreciated having it in written form. You essentially did what I tried to do, but I didn't have the same resources, in getting rid of the things that were in the public domain. But as Mr. Reynolds points out, there are still things that weren't, so how were they arrived at?

My sense is that given the front-end message and the government's rededication to security in these matters, it would be highly unlikely that Mr. Fife had sources; I think it would be one source. We're not going to get that information out of Mr. Fife, nor should we even try. But I think what we do have, perhaps, is Mr. Fife's behaviour.

When you interviewed 214 people, did anyone mention that Mr. Fife had contacted them?

Mr. Richard Fadden: It is one of the questions that has been asked by the investigator. In every case, people were asked whether or not there was any contact with Mr. Fife and his colleague. In a few cases the answer was yes, because it was part of their job. In most cases the answer was no. I was asked the same question. I was investigated, and had not spoken to either person.

Mr. Joe Jordan: If there's a pattern where Mr. Fife contacted eight or ten people—I don't know what the number is—to inquire about information, and then contacted them again an hour and a half later with additional little bits of information, trying to get them to confirm it, I think that would support the argument that this was a buffet-style article. If he had a single source, in light of all the emphasis on security, that was still prepared to give him information, he might very well act differently. So I'm comforted that's part of the questioning.

Is that analysis going to be done when this is finished? Will we get an additional report, or will we get the report here?

Mr. Richard Fadden: Yes, Mr. Chairman.

The Chair: I know you gave an indication of when you will finish the interviews. Roughly, when do you expect the final report to be available on that?

Mr. Richard Fadden: I would say either immediately before or immediately after the House breaks for Remembrance Day.

The Chair: Thank you very much.

Bill Blaikie is next, then Geoff Regan and Pierre Brien, because they haven't had a turn, and then Cheryl Gallant.

Bill.

Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Well, Mr. Chairman, I don't know, there's something inadequate about the way this is being dealt with.

The witness said that if somebody could explain it away.... And you've certainly done an admirable job of trying to explain it away, but we don't want it explained away; we want to get to the bottom of it.

It seems to me this administrative inquiry is not.... If I hear you correctly, unless you get a kind of accidental or unintended confession, you can interview all kinds of people and they'll just deny it.

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Based on what we heard now, I don't have any great hopes that at the end of this we're going to be any better off than we are right now or perhaps than we were at the beginning with regard to knowing how it is that in spite of repeated interventions in the House, repeated policy announcements by the ministers in the government, repeated rulings by the Speaker, and repeated complaints by the opposition, this still happened.

I don't want to give all the credit to Mr. Fife. He managed to put together a story that sounded as if he had a source when he really didn't have one. Something more is going on, it seems to me.

It's not so much a question to you, Mr. Fadden, but to all of us. If this is all we have at our disposal, we don't have much by way of trying to get to the bottom of why the collective political will of the House—the government, the opposition, and the administration—can be thwarted in the way in which it appears to have been thwarted, yet all we have at our disposal is these very ineffective mechanisms.

I don't know what else to say. I don't really have a specific question for you.

The Chair: Assuming there was no leak but that the journalist claimed there was, would you care to ask whether that's mischievous with regard to Parliament and parliamentary privilege?

Mr. Bill Blaikie: Consider yourself asked.

Some hon. members: Oh, oh.

Mr. Richard Fadden: Thank you, Mr. Chairman.

One of the things I've learned in working in Ottawa, Mr. Chairman, is that I should never ascribe to members of the media mischievous or ill intent. I think that in reality it's the job of the media to try to figure out what's going on. So I don't ascribe that to journalists.

In respect of the public servants who may have had a telephone call or a conversation, it's a very difficult situation. We're trying to operate an open government and to be open when we talk to people. People had been enjoined particularly in respect of this bill to watch it, to use the vernacular, because it was very sensitive for a whole raft of reasons. I still think that the rationale I tried to advance went some distance in explaining a lot that was in here.

Mr. Chairman, Mr. Blaikie makes reference to the fact that an administrative inquiry is of limited effectiveness. But even if you have a criminal inquiry, before somebody can be spoken to, they have to be reminded that they have constitutional and legal rights. There's a right against self-incrimination.

A lot of criminal or administrative inquiries in any field you might imagine find success because either you see a pattern, as your colleague suggested, or you get lucky in finding something.

I'm not trying to diminish the frustration you must feel, but in this sort of area it is very difficult to find an individual, given the constitutional, legal, and union rights people have. Like Mr. Blaikie, Mr. Chairman, I find myself wanting to try to be helpful without being able to say there's a picture-perfect solution, because I don't think there is.

The Chair: On the list is Geoff Regan, Pierre Brien, and Cheryl Gallant.

Mr. Geoff Regan (Halifax West, Lib.): Thank you, Mr. Chairman. Through you, I want to thank our guests for coming today.

First of all, I'd like to try to identify, if we can, the parts of the article in question that remain outstanding; in other words, the parts that were not in the public domain. Mr. Reynolds referred to the issue of membership versus participation in gang organizations and how this legislation would mimic the federal anti-gang legislation. That appears to be one aspect that, as I understand it, you did not find in your rather exhaustive review of previous statements by ministers.

• 1145

Have you identified, and I expect you have, the other aspects of this article that do not match up with the different statements you went through and that are outstanding as items that were not mentioned in advance?

Mr. Richard Fadden: In fact, Mr. Chairman, the issue of the definition or making membership a crime was alluded to on one or two occasions. The Minister of Justice did say at one point:

The convention requires state parties to make it a crime for a person to provide or collect funds with the knowledge that they might be used in terrorist activity.

It goes on to talk about the definition of a crime.

To answer your question directly, we can find pretty well for everything in this article either a direct or indirect linkage. I don't mean to say that the minister used an expression and it's repeated in the article. But I think one of the things that characterized the ministerial statements about this in the House is that they were fairly broad. They used general language, and I think Mr. Fife did the same thing.

Mr. Geoff Regan: One of the issues is this whole matter of security. I acknowledge what you said about the fact that the measures concerning detention and investigative hearings, which perhaps are the most controversial aspects of the bill, were not mentioned in the article. I think that's noteworthy in terms of our consideration of the level of seriousness.

There's no question that we're very concerned about this article and certainly about the appearance of a leak, but I think it's important for us as a committee to try to measure what is the level of seriousness of whatever has occurred here, if it is in fact a leak.

Putting aside for a moment this issue of the individual aspects of the article, it has been suggested that there was a breach of secrecy. In fact, the government House leader said:

I believe the House leader for the Conservatives referred to this as privileged information. Actually, it is more than that. It is secret in the very sense of government secrecy. ... This is not only a breach of our rules in Parliament, it is a breach of government security in addition to that.

Since then it has been suggested in this committee that it was not simply a breach of government security but a breach of national security and that it somehow endangered the national interest. I'm not exactly clear on the reasoning behind that. I'd like your assessment as to whether the unique aspects of this bill being leaked in advance would somehow endanger national security.

Mr. Richard Fadden: I think the short answer to that, Mr. Chairman, is no. For that argument to obtain it would also have to obtain between the period when it's introduced in the House, goes to the Senate, gains royal assent, and is put into effect. Most of the provisions of the bill are longer term provisions. They would not provide an advantage to a terrorist or a potential terrorist given the timeframes involved. So from the perspective of the national security, we would argue that did not come into play.

Mr. Geoff Regan: Unfortunately, Mr. Blaikie isn't with us at the moment, but he suggested that something was deficient in the investigation. I regret that he did not offer a proposal as to what else could be done.

The chairman mentioned this question of whether the journalist might have been mischievous. It strikes me that may not be a road we want to go down, because it would lead us to the question of whether we bring the journalist before the committee. If the journalist naturally says he's not going to divulge his source, first of all, I think it's pretty hard for us to come to any conclusion on whether he had a source or didn't have a source.

Obviously, Mr. Fadden, you've been going through the process of trying to identify if there is someone who has been a source. We're not going to find that out from him. If he says that he's not going to divulge it, our alternative is to hold him in contempt, which I don't think is a very attractive resolution from the point of view of the committee or something that we want to get involved in. So it leaves us with the problem, without question, of how to resolve this and how to come to a conclusion on this matter.

In relation to Mr. Blaikie's statement that there's something deficient in the analysis, is there anything else you can propose that has been missed or that might make for a more successful investigation? I can't see anything, but perhaps you can.

• 1150

Mr. Richard Fadden: Well, Mr. Chairman, we can't either.

I want to say to the committee that when I acknowledge at one level that getting an effective outcome from these inquiries is difficult, I'm being honest. But having said that, 300 people are being interviewed. They're being interviewed against a set of questions that have been thought through by experienced investigators.

We're going to be spending a fair bit of money on getting a senior investigator from Deloitte & Touche to deal with this. We do not have the power of compulsion. You can't compel people to answer against their own interest. As I said earlier, even if you have the police involved, I think you run up against a whole range of constitutional and legal issues that make it difficult to resolve.

We truly have racked our brains over the years in Privy Council Office about how you deal with leaks, be they leaks relating to Parliament, or cabinet confidences, or others. Unless you want to set up a sort of arrangement where you significantly cut back on the amount of consultation you engage in—which I would argue is not desirable, because then Parliament would get bills that aren't as well thought out—there are difficulties.

So we try to remind people. In some cases we cut distribution of material and do a variety of other things. But to be honest, Mr. Chairman, I can't suggest anything additional, because we have tried to come up with solutions to these practical difficulties and have not been able to.

Mr. Geoff Regan: The idea of having the RCMP involved in some way has been raised. I find it difficult to see what investigative measures they could use that you haven't already used. But I guess the real question in my mind is, from your perspective, considering the kinds of work the RCMP is at the moment engaged in, would you view this as a good use of their time?

The Chair: Be brief, Mr. Fadden, if you would.

Mr. Richard Fadden: Yes, Mr. Chairman.

No, I would not; I would particularly not view it as a good use of their time unless we can find something to point them at. We have not found that, Mr. Chairman.

The Chair: Pierre Brien.

[Translation]

Mr. Pierre Brien (Témiscamingue, BQ): When the Minister of Justice appeared before us, she told us that she was sure that the leak did not come from her department. Can you give us the same assurance?

Mr. Richard Fadden: Mr. Chairman, I believe that all the interviews at Privy Council are over, except for one. We have attained the same results as Ms. McLellan.

Mr. Pierre Brien: In her department?

Mr. Richard Fadden: No. I thought you were talking about my department.

Mr. Pierre Brien: She said that she was sure that it did not come from her department. Can you say the same thing?

Mr. Richard Fadden: I can't do so before I've seen the final report, but the discussions we have had so far with her security people and mine indicated that she is quite right. I would like to still allow myself the possibility of changing my answer once I have seen and analyzed the final report.

Mr. Pierre Brien: I want to be sure that I've understood. In the final analysis, you contact the people who had some access, or complete access, to the information, and you ask them whether they have been in contact with the media. Once a person says no, he is no longer a potential suspect.

Mr. Richard Fadden: That's right, Mr. Chairman. Unless we have information to the contrary from another source, we presume that the officials and the people who work in the ministers' offices who answer these questions are telling the truth.

Mr. Pierre Brien: Do you hope that this will lead you somewhere?

Mr. Richard Fadden: As I said in reply to Mr. Regan's question, we have a hard time with this, but all these people have sworn an oath to respect secrecy and to act properly. Unless there is some specific clue, we cannot presume that someone is guilty and we cannot presume that he will lie to us. I believe that you treat us the same way before this committee: you presume that I'm going to tell you the truth. We do the same thing during an administrative inquiry.

Mr. Pierre Brien: I won't go down that road, but I highly doubt that you will find anything in this particular case.

My concern is as follows: all this leads us to conclude that it would be very easy for such a thing to happen in the future and no solution has been found. In addition to investigating the current situation, are you trying to find new mechanisms or new ways of doing things? Is there some way to have more monitoring than what we have now to ensure that this does not happen again, or if it does happen, that we will be better able to track down possible sources?

• 1155

Mr. Richard Fadden: Mr. Chairman, with your permission I will answer the question in two parts. I think there have been very few leaks over the years of ordinary bills. Procedures are in place, and people follow the rules closely.

The specific problem with this bill and other bills that are drafted very quickly is that we have to call upon a very large number of people very quickly. Ordinarily, we would have a hard time acting this way. So I would make a distinction between normal situations and special situations where bills are drafted on an urgent basis.

We are in the process of seeing what can be done to restrict access somewhat and to keep closer tabs on the documents, but we are facing a dilemma, to some extent. If we wish to co-ordinate the drafting of these bills in an effective manner, initially for the ministers and then for Parliament, we have to consult a very large number of people.

The easiest way of doing this is to simply limit the number of people who have access to the documents. Over the years, we have learned that ultimately this does not work. People have to consult. Another way of going about it is to treat the documents as if they were top, top secret. Each document is numbered and we have each person who has received a copy of the document sign for it. We do that in the case of top, top-secret documents having to do with national security, but that causes considerable delays. It's hard to do that.

Are we going to review the way we do things? Yes. Do we expect to eliminate the risk 100%? I can't say yes to that question.

Mr. Pierre Brien: I'll make a parallel. Every year, there is a budget exercise. Any budget leak has major complications, since some people could take advantage of financial information. For example, changes to the tax rate for capital gains. This year, for the second year in a row, the budget process began in the fall. To the best of my knowledge, that is not the regular process. The budget was not begun at the usual time.

Last year, we didn't have any problems with budget leaks. In light of what you've told me, I could be somewhat concerned this year about the budget. You said that when it's done quickly, the risks are higher. Is there a greater risk of a budget leak this year, or is there special treatment for the budget, treatment that was not applied to this bill?

Mr. Richard Fadden: Mr. Chairman, I don't have the details, but I do know that a process was developed over the years to deal with the budget. The budget also involves several departments, but it is monitored quite closely by the Finance Department.

The problem with the bill before you is that it affected at least seven or eight departments in a truly considerable way. Often the budget only includes two or three items that affect a department. In that particular case, there is a not a great deal of legislative drafting either. In this particular case, a very, very large number of people were involved.

I would say that the normal budget process will apply this year. I don't think that the risk is higher. Could some of the measures that we use for the budget process be adopted in cases such as this one? You raise a good point, and we will look at the situation.

The Chair: Pierre, is that all right?

[English]

Cheryl Gallant.

Ms. Cheryl Gallant (Renfrew—Nipissing—Pembroke, Canadian Alliance): Mr. Chairman, I have three questions and I'm going to be brief. I would ask that the answers be brief so that we can get responses to all of them.

One of the roles of the Clerk of the Privy Council is to provide advice to the cabinet. Since you assist the clerk, you would be involved in this as well. A document published by the Privy Council entitled The Responsibilities of the Privy Council Office talks about responsible government and says:

The individual and collective responsibility of the members of the Ministry to Parliament form the basis for responsible government in Canada. Ministers are legally responsible for the policies, programs and administration of their departments, and answer personally to Parliament for their decisions and actions in carrying out their portfolio responsibilities.

I'd like you to define what it means when it says “legally responsible” and maybe expand a little more on the concept of “ministerial responsibility” and how it would play into this particular case.

Mr. Richard Fadden: Yes, Mr. Chairman, I'll try, although as I'm sure the member knows, this is not a simple subject.

• 1200

The principle of ministerial responsibility has evolved a fair bit over the years, from a point many years ago where a minister was politically and legally responsible for every single act conducted in his or her department to where, both here and in the United Kingdom, on details involving the regular operation of the department the minister is responsible for making sure there are procedures and practices in place that are reasonable, but the minister is not politically or legally personally responsible for any mishaps that may occur.

There is a whole raft of variations between those two extremes. To give you an example, if an official makes a mistake in the Department of Human Resources Development or in Agriculture Canada on a detail of giving out a grant or a contribution, if the process in place was reasonable and had been approved by the minister, the minister would not be legally responsible for that kind of mistake, whereas 50-odd years ago, under the doctrine that obtained in the United Kingdom, the minister would have been accountable for every single thing. There has been an evolution.

Ms. Cheryl Gallant: Thank you.

In any organization, if you do not get satisfaction at a certain level, you move up the ladder, eventually coming to the desk where the buck stops. That would mean the minister in this scenario.

What happens if the person responsible for this contempt of Parliament cannot be found? If the minister, or the Prime Minister, were ultimately responsible, then I would think someone would have to take the fall—one of those two.

This committee has indicated it will likely not accept an apology this time around. Would the doctrine of ministerial responsibility require the minister to resign, or the Prime Minister to fire her? What other action could be taken in order for the government to comply with the doctrine of responsible government if the minister refused to resign, or the Prime Minister refused to fire her?

Mrs. Carolyn Parrish (Mississauga Centre, Lib.): On a point of order, this is a political question, and it's not fair to ask Mr. Fadden to respond to that.

The Chair: I'm not certain it is, but Mr. Fadden, you've heard the arguments, and you can argue as well as we can. If it's political, feel free not to respond, but if you can respond, please respond.

Mr. Richard Fadden: I thank the member for the help, but I can answer on the basis of doctrine relating to government. I don't want to get into any details.

The short answer in my view is no, for the same reason that I explained a moment ago. Ministers and the Prime Minister are responsible for their departments, but they are not responsible for every discrete action that's taken, in particular when the Prime Minister or ministers have put in place reasonable procedures and practices.

I would argue that the Prime Minister and ministers have put into place entirely reasonable rules, regulation, and practices. They have caused officials and caused each other to be reminded of the importance of these practices. So I would say unequivocally, Mr. Chairman, there is no issue here regarding political accountability that would require anything approaching....

The Chair: Cheryl, your last question.

Ms. Cheryl Gallant: Going back to the Privy Council document, it says “Ministers remain in office only as long as they retain the confidence of the House of Commons”. The phrase does not say ministry, which would lead us to believe that it is possible for a particular minister to lose the confidence of the House and not cause the entire government to fall. Is this your take on it? This committee could conclude that the minister should not continue in her portfolio, and if that report were adopted, the minister would have to resign.

Mr. Richard Fadden: Mr. Chairman, I'd like to decline to answer that question. That really is, I think, outside the ambit of my responsibilities.

The Chair: That's fine.

Tony Tirabassi.

Mr. Tony Tirabassi (Niagara Centre, Lib.): Thank you, Mr. Chairman.

I too would like to thank the witnesses, who appear here to assist in hopefully clearing up this matter.

I understand the various components involved with this inquiry—mainly your department and the firm you contracted from outside, Deloitte & Touche.

Understanding the RCMP being totally independent of the government and that a determination is made whether there's enough evidence to suggest going to that source of investigation, at what point are the RCMP brought in? In other words, is it on day one when the inquiry is launched? Is there an obligation on whomever to bring them in? Is it something they do on their own? Are they brought in somewhere in the middle? Is it a reporting procedure that's required by this outside contractor group? Could you please just fill me in as to how this works?

• 1205

Mr. Richard Fadden: On the broader issue of the independence of the RCMP, the government, a minister, a public servant can always ask the RCMP to investigate anything. Whether or not the RCMP investigates is a matter for the RCMP. Over the decades in this country the capacity of anybody to instruct the RCMP to start an inquiry and to pursue it in a particular way has been judged to be beyond the capacity of either ministers or the public service to order. The only control on this aspect is by the courts.

So if the Commissioner of the RCMP, in reading the newspapers, for example, were of the view—to go back to Mr. Regan's question—that all of this resulted in a breach of national security, which I don't believe was the case, he would have been entirely entitled to start an inquiry on his own. And there's nothing anybody could have done about it.

If, on the other hand, he did not come to that conclusion and over the course of our inquiries we came to the conclusion that there was a breach of the criminal law, our procedures require us to draw it to the attention of the RCMP.

In practical terms, however, because of the vast array of responsibilities the RCMP has, they have to make judgments on what they're going to pursue or not pursue. If we do not have some evidence, some suggestion, some clues to suggest to them that they're allocating scarce resources to a criminal inquiry, they probably won't do it. But I want to stress again that it's their call. It's not the call of ministers. It's not the call of officials.

Over the years deputy ministers or the clerk have brought in the RCMP when there have been leaks, and usually they've involved issues relating to national security. In some cases they've investigated; in other cases they haven't. Really, you have to go back to the facts of each case, Mr. Chairman, and in the end, it's for the RCMP themselves to decide whether or not they're going to investigate.

If we found anything that led us to believe there'd been a breach of the criminal law, as I mentioned earlier, we would draw it to their attention and then it would be for them to decide what to do.

Mr. Tony Tirabassi: That's it, Mr. Chairman.

Mr. John Reynolds: After listening to the conversation, I can assume that the next security bill we're getting in a couple of weeks will be probably fairly secure.

You said that to date there is no evidence that anyone disclosed substantive information to the media. I've two questions there. One, what's your definition of “substantive”? Two, does that also indicate in your interviews that some people have admitted they did disclose some background information to the media, which we don't think they're supposed to be doing, unless they're doing it to us at the same time?

Mr. Richard Fadden: My use of the word “substantive” was meant to include the element of something that was not already in the public domain.

For example, communication shops in various departments, in the Prime Minister's Office, potentially, are asked all sorts of questions about things that are said in the House. They're asked to amplify them, explain them. My understanding is that a number of those conversations have taken place. I was meaning to suggest that outside of what was stated in the House or had been stated by ministers, those people who have had contact did not go beyond that.

I'm sorry, my pea-sized brain forgot the second part of your question.

Mr. John Reynolds: Just describe the word “substantive”.

Mr. Richard Fadden: It was meant to be not already in the public domain.

Mr. John Reynolds: I have a quote here. It says in the article:

The bill will also create a new Criminal Code offence dealing with the use of explosive or lethal weapons in public places and it will allow Canada to prosecute criminals accused of terrorist acts in other countries and to extradite terrorists from Canada and to stand trial abroad, sources say.

To put that together, you'd have to be a fairly good reporter, I would think, from what I have heard and read of what the minister was saying. So I would hope in your final report you will tell us how these types of quotes could have been put together. That might prove to us that there was nothing out there. He couldn't have sat at his typewriter the night before and pounded out and just thrown in the words “sources say”. Could we expect that in your typed report?

Mr. Richard Fadden: We'll try to do that, Mr. Chairman.

I would point out that the extra-territoriality aspect was mentioned by the Minister of Justice, but that was only one aspect of what you just said.

Mr. John Reynolds: Thank you very much, sir.

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The Chair: Colleagues, I still have Jacques Saada, Carolyn Parrish, Joe Jordan, and Cheryl Gallant.

Jacques.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you, Mr. Chairman. I would like to make a comment rather than ask a question.

The terms we are using are contradictory. One cannot ask lawmakers to follow a transparent approach, and then turn around and criticize them for doing so. Either one opens it up, or one doesn't open it up. One cannot expect a journalist to use his research skills, his judgment and his analytical mind and then criticize him for doing so.

For example, the link between organized crime and terrorism was shown a long time ago. It was already alluded to in Bill C-22 from the previous Parliament. Bill C-16 on charitable organizations also dealt with that issue.

Mr. Reynolds just asked a question that reminds me—I'm quoting from memory, and please correct me if necessary—of the issue of extradition. The justice committee looked at these aspects when we amended the Extradition Act.

There are so many aspects that are easy to put together for someone who really wants to do in-depth work, so that leads me to what I think is a fundamental consideration. Ms. Gallant asked a question. She said:

[English]

“What happens if a person responsible for contempt is not found”? And I would answer, “What about if there is no contempt?”

If you continue wanting to find someone who is responsible for contempt and there is no contempt, it's not very far from a witch-hunt. I'm a little worried about it. I reserve my judgment

[Translation]

until I get Mr. Fadden's report. I really tend to believe that this was done in good faith, and that there were no slips, and no harm was meant, and I would even say that there was no mistake made along the way. I believe that a skilful journalist did a good, in-depth analysis of a transparent process, and we find ourselves dealing with the consequences of our current system.

I reserve the right to change my mind, but at first glance, I would say that there really hasn't been any contempt.

The Chair: Thank you, Jacques.

[English]

Mrs. Carolyn Parrish: I have a comment as well, rather than a question.

First of all, I would like to compliment you on your presentation. I wasn't here for the beginning of it, but it was extremely thorough. And when you refer to yourself as having a “pea-sized brain”, I'm rather impressed with the fact that you're that humble. It was very, very good.

With due respect to the other reporters here, I was cautioned when I came to the Hill in 1993 to watch out for Mr. Fife. He can squeeze quite a bit of information out of one or two shrugs of your shoulders. So I think Mr. Fife is quite capable of doing exactly as was described in stringing that all together. He's also very capable, just by the nuance of the way you respond to an inquiry, to decide what you're thinking. We are all well cautioned to be careful around Mr. Fife.

I have another comment, and this is a phenomenon that's changed over the years. It used to be the only time you had legitimacy in a story is if you actually named your sources. And I have noticed in the last ten years that journalism has changed rather remarkably. It is now referring to unnamed sources more often than it refers to named sources.

I used to work in the media. We were always told when you did this—and I was fairly junior league, compared to these guys—that the story carried no weight unless you had at least one person willing to go on the record. And then you could haul in one or two unnamed sources.

What happens now on the Hill and in most media is the unnamed source takes far more precedence than the named sources. People who want to leak things to the press do it with gay abandon and you have stories like this where people are on a witch-hunt looking for who spilled the beans. So the whole idea of unnamed sources has turned the media into creating the news instead of reporting the news. That's my own personal editorial comment.

I think you've done an incredibly good job of convincing me and Mr. Blaikie, and I respect Mr. Blaikie's analytical mind, that there was no witch-hunt here and there was no leaked source. And I think Mr. Fife did an admirable job of doing what all the media does now. He created a very factual story out of various and sundry methods that are open to reporters.

The Chair: Again, just in case he is following this, I think—

Mrs. Carolyn Parrish: I'm dead.

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The Chair: No. You should be careful, because I think you should say witch or warlock hunt, just in case there's an interpretation thrown in there.

Mrs. Carolyn Parrish: Could I add a postscript? I think he's an incredibly good writer.

Some hon. members: Oh, oh.

The Chair: Let's not overdo this, okay?

Joe Jordan, Cheryl Gallant, and Geoff Regan.

Mr. Joe Jordan: Mr. Chair, I just had a short conversation with Mr. Reynolds. I concur. I think if you can find a way to source out this leak, then the Liberal caucus would be willing to contract.

Some hon. members: Oh, oh.

Mr. Joe Jordan: We might be able to get a package deal.

I just have a couple of quick points to reiterate what I think your statement was. One of the problems is that this leak is differentiated from historical leaks by the fact that this bill engaged more than one ministry. The notion that somehow at the end of the day the justice minister has to take the fall should really be dependent on proof that the leak came from that minister's department.

This omnibus bill is by definition problematic because traditionally you can contain things within one ministry. Then the idea of ministerial responsibility can be applied at appropriate levels. This one is a little different, given that there was tremendous interest in this bill, not only in the press but in the public. That's what I heard you say, and if you could, please just speak to that briefly.

I have two final points. One relates to one of the problems I'm having, namely the fact that a leak is a leak. I don't think we have good leaks or bad leaks. There are certain times when people in the bureaucracy leak to the opposition, for instance. I think that we need to take a hard line on that type of activity as well. I don't think we can make a differentiation that when there's some political advantage to a leak, it's good, and when there isn't, it's bad. I think we've got to be concerned whenever it happens.

My final question: Do you have any sense of or will the report include some kind of quantification of the direct and indirect resources that have been directed to this investigation? I think it speaks to the seriousness with which the inquiry was undertaken.

Thank you, Mr. Chair.

The Chair: Mr. Fadden.

Mr. Richard Fadden: Thank you, Mr. Chairman.

In respect of your first point, this is an omnibus bill. Omnibus bills by their very nature are special. There were at least five or six ministers involved. There are very few bills today where there's only one, single minister involved and no other minister touches it. There were substantive linkages between the various components of the bill, so a very large number of people were involved.

In respect of your comments about leaks, I could not agree with you more from the perspective of the Privy Council Office and the public service. People are either authorized to make information available or they are not. When you do have an authorization, there are particular rules that apply when Parliament is interested, and there are other rules that apply when Parliament is not.

Insofar as quantification is concerned, I'll find a way to make sure the information is in the report.

The Chair: Cheryl Gallant.

Ms. Cheryl Gallant: Thank you, Mr. Chairman.

The document from which I quoted during my first set of questions—the quote was that “the ministers are legally responsible”—was Responsibility in the Constitution, Privy Council Office, Ottawa, 1993. Now, the article that pointed me to that footnote was obtained from a document that is currently on the parliamentary Internet, so it would seem that it's still current in its reference to legal responsibility.

My question is with respect to the response given to us by the witness. Was this maybe his interpretation of the evolution of the principle here, or is the document on the parliamentary Internet wrong?

The Chair: Mr. Fadden, if you're familiar with the document.... Do you understand the dynamic here?

Mr. Richard Fadden: I think I do. I can only give you, Mr. Chairman, an incomplete answer. I'd be more than happy to look at the documents in detail and come back.

• 1220

The doctrine is that when a department is set up by Parliament, a minister is assigned to that department, and the act usually says the minister has the control and direction of the department. That's the basis for the minister's legal responsibility for what happens in the department.

That being said, the Financial Administration Act, the Public Service Employment Act, and a long list of acts I could give you specify that ministers can delegate their authority to deputy ministers and to officials. Over the years the courts have held that while the minister remains at a fairly high level of constitutional responsibility in the abstract sense and is legally and politically responsible, in practical terms what happens is that if a minister lawfully delegates his or her responsibility and authority and sets up rules and practices for the discharge of that responsibility, the minister cannot be hauled into a court of law and legally held to be personally accountable.

That's the best I can do now, Mr. Chairman. I would have to look at the documents. But I would like to stress that I was not conveying my personal opinion, I was trying to convey the view of the Privy Council Office.

The Chair: Geoff Regan and then John Reynolds. Please be brief.

Mr. Geoff Regan: Thank you, Mr. Chairman.

I have a comment, as well. First of all, the opposition and the Alliance in particular have expressed great concern about breaches of the Official Secrets Act. It strikes me as remarkable that I don't recall ever hearing that kind of concern when a member of the opposition had received, for example, an manila envelope with secret information, which was then divulged in some manner by that member. I don't hear the same kind of concern around those kinds of leaks I hear around this alleged leak, first of all.

Secondly, Mr. Chairman, the Alliance is looking at what remedy there might be if there was found to be a contempt here. The Alliance has been calling for resignation of the Minister of Justice. Now, clearly, if in fact it were established that there was contempt, that would demand a very severe penalty. It strikes me that for any severe penalty there ought to be a very high burden of proof required before you would impose such a penalty. From what we've seen so far today, while there have been concerns and while we still want to see the final report from the Privy Council Office, it is not at all clearly established, Mr. Chairman, that a secret has been divulged or that a part of the bill has actually been divulged by a member of some department of government.

It seems to me that for the Alliance to call for a resignation or any severe penalty, they're going to have to establish much more clearly not that there was an interesting article that had information about the bill, but that in fact the information was not available elsewhere, that it could not have been brought out elsewhere, and that it had to be the result of a leak. Even then, there remains the question of what the consequences of that are. It's not clear to me that the consequences they're looking for are at all appropriate.

I think we ought to wait, first of all, for the report of the Privy Council Office on this matter. I don't think that in the end Ms. Gallant is going to get the pound of flesh she's looking for, although she may succeed in getting the media attention she really wants.

The Chair: It's John Reynolds, then Cheryl Gallant.

By the way, colleagues, I'm in your hands. My sense is that I'm going to wind it up soon, okay? But John first, and then Cheryl.

Mr. John Reynolds: I'm just shocked to think that my colleague would think we're here to get media attention. I think we're all in the business of politics.

I would just like to talk a little about my colleague Ms. Parrish's comments. I think it's very important here, from a.... Some might say Mr. Fife made it all up when he said things like “senior government officials say”, “according to sources who have seen drafts of the legislation”, and “a senior official speaking of background”. I can tell you from my years in the media, when I wasn't in politics, that I wouldn't say those things unless they were true, and I don't think Mr. Fife would either. That's the whole point of this thing. You don't make these things up when you're in the media. When I did a talk show in British Columbia, I got many leaks, including the brown envelopes. But most of them didn't come from senior government officials; they came from senior elected officials of the party that was either in power or in opposition.

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I have more respect for the media after being in the media, knowing who I got my leaks from. That's why you have this kind of investigation.

Are you interviewing the cabinet ministers and parliamentary secretaries who had access to this information, in addition to all the employees of the department? I think that's extremely important.

Mr. Richard Fadden: Yes, Mr. Chairman.

The Chair: Cheryl Gallant.

Ms. Cheryl Gallant: Thank you, Mr. Chairman.

In the 14th report of this committee we concurred, and Parliament concurred, that the outcome of the question of breach of privilege when the minister's department briefed the media on C-15 was indeed a breach of privilege. In that case she was held in contempt, which means she was responsible for that breach. This time around, if the breach is attributed to her department, why would she not be held accountable again?

So we go back to the Privy Council report. We're talking legal responsibility. Why would it be one way one time, with her being responsible, but not this time?

Mr. Geoff Regan: You have to establish....

The Chair: I think we're in the process. This referral by the House of Commons, for me as chair and for us as a committee, is a very serious matter. One, it's been referred to us by the House of Commons. It was raised there and we should deal with it. Secondly—and I think for members of this committee in particular—this matter of privilege, which sounds exotic to our constituents, has to do with the effectiveness of elected officials and how we function and deal with a huge bureaucracy. So this is a very, very serious matter. The committee's taking it very seriously. I think we are trying to establish that there was a leak and that there was a breach of privilege. I say this as chair, not as a member of Parliament.

Cheryl, we're doing that, and I think to the best of our ability. But I'd be glad to hear further comments, if you wish.

Ms. Cheryl Gallant: Okay.

So according to what our witness is saying, the evolution of the Privy Council Office report would indicate that she's not responsible. We found that she is responsible. So I....

The Chair: I understand your point.

Mr. Fadden, would you want to comment on that particular point?

Mr. Richard Fadden: No, I can't, Mr. Chairman.

The Chair: You don't?

I have on this point directly, very briefly, Geoff.

Mr. Geoff Regan: It seems to me, Mr. Chairman, that there's an important distinction here. In the case of Bill C-15, it was established that there was a contempt, there was a breach. The minister even admitted it.

The Chair: So your point is to what end?

Mr. Geoff Regan: It has not been established here.

The Chair: We have to establish....

John, briefly.

Mr. John Reynolds: I think the issue here is that the last time the minister admitted, “We made a mistake”, so it's there. But I guess the concern we might have—based on what the witness said—was that under our traditions now the minister maybe doesn't....

If we found out there was a breach here, would the minister be responsible? If you found out in your interviews one of her staff leaked this information, then who's responsible—that person, or is the minister responsible?

The Chair: I would argue that these are things the committee, not the witnesses, has to determine, and the link between breach of privilege in the House of Commons and this ministerial responsibility, which you've been trying to discuss.

I will go to Carolyn Parrish. Briefly, please.

Mrs. Carolyn Parrish: Yes, very. I couldn't get any briefer.

I would move, Mr. Chairman, that we invite Mr. Fife to come in and answer all these questions. I understand he's not going to reveal his sources, that's not allowed. But we could ask him questions that would work up to “Did you actually talk to a significant person? Who was it? Where did you get your information? How much of this did you deduce?” I think it would be very entertaining and informative to have Mr. Fife here.

Why are we beating around the bush? He's the guy who wrote the article.

The Chair: Okay.

Colleagues, before I thank our witnesses, I'd be grateful if you'd stay, because I'm going to try to think aloud as to what we do next.

I'd like to say that I would assume from what you said that your final report will include the possible matter of national security.

Mr. Richard Fadden: We will do that, Mr. Chairman.

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The Chair: Okay.

Secondly, can you give me an indication if you think it's probable the report will be ready by say a week today?

Mr. Richard Fadden: No, Mr. Chairman.

The Chair: Could I ask you, Mr. Fadden, that by next Wednesday at the latest you either confirm that or say that you have it ready? That's important for us.

Now, colleagues, I've been thinking about what we should do. I had thought when we started today that we would proceed right through until Tuesday and carry on with this matter. But I would suggest to you this, if I might. Going back to the point of the motion, because at some point I know I have to deal with it, I would suggest that such a motion is most appropriate when we have received the report. I think one has to confirm there's something we should be looking into, with due respect.

Mrs. Carolyn Parrish: Well, that's good.

The Chair: I would like to suggest that we meet on Tuesday, colleagues. We have a number of things we need to do. One is to follow through on Mr. Kingsley's visit and the redistribution of ridings, continuation of the referendum material, the matter of briefing of councils. I would suggest we have a meeting built around those. Then, either in camera—we can decide at the time—or not, we briefly discuss what we do next.

One possibility—but it strikes me as an unlikely possibility—is that next Thursday we return to this matter. It's much more likely—Mr. Fadden, I hope you would note this—that we would return to it the Tuesday following the break. Again, I'd be grateful if you could advise the committee of the status of the report, because it does affect how we move on this matter.

Colleagues, are you comfortable with that? It's going to be some housekeeping materials, then considering how we move on this, then deciding what we do next Thursday. But two weeks today, I guess it is, we would intend to return to this matter. Colleagues, are you comfortable with that?

Some hon. members: Yes.

Mr. John Reynolds: What about Mrs. Parrish's motion?

The Chair: I think she withdrew it.

Mrs. Carolyn Parrish: No, I didn't withdraw it.

The Chair: No, she didn't withdraw it.

Would you follow my suggestion? My suggestion is that we best consider such a motion when we've seen the report.

Mrs. Carolyn Parrish: I always follow you.

The Chair: Colleagues, the meeting is adjourned until 11 a.m. next Tuesday.