OGGO Committee Report

TESTIMONY

2.1             During its June hearings, the Committee received testimony from several OPC witnesses that conflicts with these key findings. As set out in the fifth report of the Committee, Mr. Radwanski provided a version of events that differed in important particulars, and the Committee was not able to accept the accuracy of his account as it related to matters such as the alteration of the letter. As well, several other OPC employees provided testimony that was either ambiguous or incorrect in certain particulars, concerning events of which Subcommittee members believe they had immediate knowledge.

2.2             In what follows, attention is given separately to the issues raised by Mr. Radwanski’s testimony, and to those that relate to the testimony of other individuals.

MR. GEORGE RADWANSKI

2.3             The version of events provided to the Committee by Mr. Radwanski in June of this year departs in several important ways from what actually happened, as summarized in the “Background” section of this report.

2.4             First, Mr. Radwanski denied that he had provided, or caused to be provided, the falsified letter contained in the March 21 information package. He described this as the result of a misunderstanding between Mr. Radwanski and his Chief of Staff, during telephone conversations necessitated by the fact that Mr. Radwanski was in Vancouver on March 21, 2003, when the package was being finalized. Mr. Radwanski claimed that his intention was that the paragraphs of the letter, excluding one paragraph omitted because it was confusing, were to have been used in the preparation of a briefing note.

2.5             Second, Mr. Radwanski has argued that, on the copies of expenses claim forms provided to the Committee, names were blacked out in order to safeguard the privacy of individuals. However, he denied any knowledge of the whiting out of information.

2.6             Third, Mr. Radwanski has denied that he made remarks of a threatening nature to employees, relating to the future career of anyone who had been disclosing information about practices at the OPC.

2.7             These inconsistencies relate to matters about which we believe Mr. Radwanski had direct personal knowledge. In the course of our hearings he was made aware of the inconsistencies and chose not to alter his version of events. Members of the Subcommittee have therefore concluded that Mr. Radwanski deliberately sought to mislead the Committee, in June of this year, concerning these matters.

CONCLUSION 1

That, as outlined in paragraphs 2.4, 2.5 and 2.6 of this report, Mr. George Radwanski provided misleading testimony to the House of Commons Standing Committee on Government Operations and Estimates in June 2003, and caused to be provided misleading information during March and April of 2003, and should therefore be found in contempt of the House of Commons.

OTHER WITNESSES

2.8             Members of both the Committee and the Subcommittee which has prepared this report believe that the Committee, Parliament and the people of Canada owe a tremendous debt of gratitude to those OPC employees who, under very difficult circumstances, stepped forward in June of this year and told the truth about activities that were not proper, and needed to be stopped. Given the atmosphere prevailing within the OPC at that time, these individuals had every reason to fear the impacts that their cooperation with the Committee could have had on their day-to-day working relationships and longer term career prospects. Members of both the Committee and the Subcommittee applaud the exemplary commitment of these OPC employees and their colleagues from the Office of the Information Commissioner to the values and ethical standards of public service.

2.9             Regrettably, four OPC employees who were requested to appear before the Committee in June because of their direct personal knowledge of the accuracy of statements being made by Mr. Radwanski failed to meet the high standards reflected in the conduct of their colleagues. Several employees provided accounts of the alteration of the letter that, in whole or in part, supported the false account provided by Mr. Radwanski. At least one individual with knowledge of appropriate practices relating to expense forms denied any awareness of inappropriate financial practices at the OPC. One individual who was present at the executive meeting where threatening statements were made denied that Mr. Radwanski had made threatening statements about the future employment of the person who had informed Committee members of inappropriate practices at the OPC. One individual who did not appear before the Committee during its June hearings provided an explanation of the failure to appear which Subcommittee members find to be unconvincing, in light of other information that was made available to the Committee.

2.10         Reflecting on these events, members of the Subcommittee have concluded that several OPC witnesses in addition to Mr. Radwanski chose either to withhold or avoid providing information which it is reasonable to believe they had, or to mislead the Committee concerning matters of which they must have been aware.

2.11         In the course of the deliberations that resulted in these findings, Members of the Subcommittee also concluded that there are a number of important mitigating considerations that the House may wish to take into account in considering the conduct summarized above. First, the individuals who appeared in June were invited before the Committee on short notice, late at night (in several cases) and testified under extremely stressful circumstances. As well, one of them voluntarily returned before the Committee to correct the testimony initially provided. When their testimony was complete, all of these witnesses had to return to the OPC, where they reported either directly or indirectly to Mr. Radwanski. As OPC employees, they faced the challenge of continuing to work in circumstances that they were to describe to the Auditor General, in the course of her subsequent investigation, as “a poisoned work environment [and] a ‘reign of terror’”⁷. In contrast, Mr. Radwanski had the opportunity to communicate his views to the Committee both in public meetings and in camera hearings, and in carefully premeditated letters as well as verbal testimony, and alone among our OPC witnesses did not have to return to the office to face a hostile boss.

2.12         The circumstances under which the individuals other than Mr. Radwanski testified do not excuse the provision of incomplete or misleading evidence to a parliamentary committee. However, in our view, a case can be made for recognizing significant mitigating circumstances. We believe it would be excessive, at this time and given the stresses to which all of those who work in the OPC have been subject, to name these individuals in a public report alleging that their conduct in June placed them in contempt of the House, or to suggest penalties of the kind discussed elsewhere in this report.

2.13         With these considerations in mind, Subcommittee members have reached the following conclusion:

CONCLUSION 2

That, in addition to Mr. Radwanski, four employees of the OPC were, to varying degrees, less than forthcoming in their assistance to the Committee during its hearings in June. Subcommittee members have taken into account the mitigating circumstances described in this report, but remain disappointed in the conduct of these four OPC employees.

RELATED MATTERS

A.        Further Possible Contempts

2.14         The special reports of the Auditor General and Public Service Commission, released in September of this year, have amply validated the concerns about financial management and staffing practices at the OPC, expressed by the Committee in its fifth report.

2.15         These reports document a lengthy list of unsatisfactory practices, including overclassification of favored employees and resulting inflated costs; the prevalence of stress, intimidation and generally poor labour relations; lack of basic financial controls; contraventions of the Financial Administration Act; failure to follow travel and expense policies; abuse of financial controls on travel and hospitality spending; and inadequate contract management. These are matters that require attention by the OPC, Treasury Board Secretariat, the Public Service Commission and Privy Council Office, in line with recommendations made by the Auditor General.

2.16         Two of the Auditor General’s findings are of special concern to this subcommittee, given the subject of its investigation. First, the Auditor General found that those who prepared the financial statements of the OPC for the fiscal year ending 31 March 2003 knowingly omitted about $234,000 of accounts payable at year end. As a result, it would appear that false information was included in the Public Accounts, a central financial reporting document provided to Parliament each year. The Auditor General’s report indicates that Mr. Radwanski denied any knowledge that the financial statements had been falsified, while the Director, Financial Services, acknowledged that this had been done, and indicated that officials had believed that the deferral of liabilities to the new fiscal year would go undetected, because Public Accounts statements had not been audited for a long time.

2.17         Second, the Auditor General found that the former Privacy Commissioner had received a sum of $15,000, entered on the OPC books as a “special travel advance,” because he believed that he had not been reimbursed for all his travel and hospitality expenses. This amount was carried on the OPC books until the end of the fiscal year, and then the former Commissioner paid it back on March 31, 2003 (thus avoiding the need to reflect it in the financial statements that would appear in the Public Accounts). When the new fiscal year began, the former Privacy Commissioner then promptly obtained another $15,000 payment, which was again identified as a “special travel advance” on the OPC books.⁸

2.18         Subcommittee members recognize that this practice technically met reporting requirements. However, its purpose and effect was clearly to deprive Parliament of accurate information about the state of financial affairs at the Privacy Commission. This deception was intentional, and was directed by the former Privacy Commissioner.

CONCLUSION 3

That the findings of the Auditor General, as reviewed in paragraphs 2.16, 2.17 and 2.18, provide evidence that Mr. Radwanski has committed contempts of the House additional to those arising directly from his conduct in relation to the Standing Committee on Government Operations and Estimates.

B.        Placing Witnesses Under Oath

2.19         Witnesses appearing before the Committee during its June hearings were uniformly advised, and accepted, that their testimony before the Committee had the same status as testimony under oath, acknowledged that they were testifying as if under oath and acknowledged that they had a duty to speak the truth. The inconsistencies in the testimony received from various witnesses, on matters concerning which they all had direct knowledge, has left the Subcommittee with no alternative, however, but to conclude that some witnesses ignored the obligation to speak the truth.

2.20         With the recent experience of the Committee in mind, Subcommittee members have considered the formal swearing in of witnesses, and the possibility that parliamentary committees should adopt this practice in the future in order to discourage witnesses from deciding to provide less than the complete truth in their testimony and related written submissions.

2.21         The realistic possibility of detection and exposure, along with a clear likelihood that the exposure will lead to action by the Senate or House of Commons against any contempts of Parliament involved, remain the central safeguards against any future provision of incomplete, misleading or false evidence to Parliament and its committees. Members believe that the establishment of this subcommittee, along with the findings and recommendations set out in this report are, in themselves, a contribution to the effectiveness of these safeguards.

2.22         Aside from the threat of exposure and punishment, the central means available to Parliament and its committees to ensure truthful testimony is the placing of witnesses under oath. With respect to the Senate and the House of Commons, and committees of either House, the Parliament of Canada Act, s. 10, provides that an oath or solemn affirmation may be administered by the Speaker of either House, or the Chair of any committee, to any witness appearing before them.⁹ A schedule to this Act provides the appropriate form of the oath. It is noteworthy that the Act also provides that any person who wilfully gives false evidence while under oath is liable to conviction for perjury.¹⁰

2.23         The fact that witnesses may be found in contempt by a House for deliberately providing misleading, incomplete or altered evidence to Parliament or one of its committees creates an unconditional obligation upon all witnesses to provide the full truth in testimony before Parliament and its committees. The experience of the Committee in its June hearings suggests, however, that this obligation may need to be communicated as unequivocally and directly as possible to all witnesses, in order to emphasize the seriousness of the responsibility involved in providing information to Parliament.

2.24         The formal placing of witnesses under oath does not create obligations that do not exist already. However, we believe it would communicate the importance of the obligations to which witnesses are subject more effectively than, for example, simply informing them that their testimony will have the status of testimony given under oath. More obviously, it has clear advantages over merely assuming that witnesses are aware of their duty to speak the whole truth.

RECOMMENDATION 1

That parliamentary committees consider formally placing witnesses under oath more often, when circumstances warrant.

C.        Available Sanctions

2.25         If the House of Commons finds that any of the conduct described in this report constitutes a contempt of Parliament, it will then face the need to select and implement appropriate sanctions. While action against contempts, like the finding of contempt itself, remains the responsibility solely of the House, Subcommittee members invite attention to the following considerations.

2.26         Remedies are available to Parliament. This may not be widely known, given the infrequency of cases of contempt, especially by witnesses. The impression that remedies do not exist may be fostered, as well, by the tendency in the past for Parliaments to be inattentive to the implementation of disciplinary measures concerning witnesses, while the measures that are consistently applied to Members found to be in contempt (e.g. suspensions) are not applicable to witnesses.

2.27         The 1999 U.K. committee study mentioned earlier in this report notes that, in that country (where many traditions of parliamentary procedure that apply in Canada originated) the power to commit to the custody of the “Sergeant-at-Arms,” or to prison, was regularly used in the eighteenth and early nineteenth centuries.¹¹ The British House of Commons has also applied fines, although not since 1666, and has relied in modern times on powers of admonishment, suspension and expulsion. Non-members of the House have been imprisoned overnight (as recently as 1880, for failing to attend as a witness), and have been summoned to the Bar of the House of Commons to apologize (or take the consequences, which could have included committal to jail) as recently as 1957.¹²

2.28         In his study of the power of committees to send for persons, papers and records, Mr. Derek Lee, M.P., gives extensive attention to the issue of remedies.¹³ Possible sanctions that could be applied to witnesses found to be in contempt of the House are:

1.

Reprimand or admonishment, which involves placing the offender in the custody of the Sergeant-at-Arms and bringing him or her before the Bar of the House, to be reprimanded or admonished. This relatively mild measure relies on public shame, serving primarily to make it clear to the offender, and to the general public, that the House views contempt as a serious offence.

2.

The power to imprison, or place in the custody of the Sergeant-at-Arms. This power has been used on rare occasions in Canada before Confederation, and has been invoked once at the federal level since 1867 (the House of Commons ordered an individual committed in 1913). The House may commit an individual until the end of a parliamentary session, and may recommit the individual in a subsequent session. This is clearly a stronger deterrence measure, although in practice it could range from a primarily symbolic one-day committal to a lengthier period.

3.	The power to fine, as noted above, has not been used in the U.K. since 1666. It has never been used in Canada. However, it has been accepted by the courts in New Zealand as recently as the nineteenth century, and affirmed by parliamentary committees in several jurisdictions more recently.

2.29         It is noteworthy, as well, that the powers of a Parliament to take action concerning a contempt are not limited to the time period during which that Parliament exists. A Parliament may take up issues of possible contempt that have arisen during a previous Parliament, or findings of contempt that have been made during a previous Parliament, and apply sanctions.¹⁴ This consideration may prove to be important in the disposition of the matters drawn to the attention of the House in the present report.

2.30         Finally, as noted in previous sections of this report, the seriousness of the contempts of Parliament relating to the provision of misleading, incomplete or altered information cannot be overstated. Members of this subcommittee believe that Parliament needs to reflect this principle not only in words, but in deeds.

CONCLUSION 4

Sanctions applied in response to the conduct described in this report, should it be found to constitute a contempt of Parliament, need to fully reflect the gravity of the offence.

2.31         Your committee believes that it is its duty to place these matters before you at this time since parliamentary privilege may be involved, and to give the House an opportunity to respond to these matters.