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View Raquel Dancho Profile
CPC (MB)
I call the meeting to order.
For those who may not be aware, there was a last-minute change. Our chair was unable to attend this morning, so this morning I was asked to assume the chair role as vice-chair of this committee.
As you are also aware, I am the lead for the Conservative team. I generally lead our questions, so I will be leading with my questions as well, unless there are any issues with that. I would like to say to the committee that I will ensure respect for the time and ensure that our standards are maintained in this committee during my questioning period.
Welcome to meeting number 32 of the House of Commons Standing Committee on Public Safety and National Security. Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022.
Pursuant to Standing Order 108(2) and the motion adopted by the committee on Thursday, June 23, 2022, the committee is meeting on its study of allegations of political interference in the 2020 Nova Scotia mass murder investigation.
Just as a reminder, all comments by members and witnesses should be addressed through the chair. When you are not speaking, please ensure that your mike is on mute.
I would now like to welcome our witnesses for the first panel. From the Department of Justice, we have François Daigle, deputy minister of justice and deputy attorney general of Canada; and Owen Rees, acting assistant deputy attorney general.
Deputy Minister, I will now open the floor to your comments. Please go ahead.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:02
Thank you.
Thank you for inviting us to appear before the committee today. As introduced, Owen, who's joining me today, is the acting assistant deputy attorney general responsible for the national litigation sector in the department.
Before I begin, I would like to offer my deepest condolences to the families and loved ones of the victims of the shooting in Nova Scotia in April 2020. I want to acknowledge their loss and the impact of those events on the community.
My remarks today will focus exclusively on the process led by the Department of Justice to produce documents to the Mass Casualty Commission. The Department of Justice and its lawyers were not involved or consulted on whether to disclose firearms information at the April 28, 2020, press conference, nor were we involved in the teleconference with the RCMP commissioner that followed that day.
As a result, I really don't have any relevant information to provide on your questions on allegations of political interference in 2020. I will therefore focus my remarks on the role of the Department of Justice before the commission and on the document review and production process, including the disclosure of four pages of officers' notes related to that April 28, 2020, teleconference.
Given that our time is short and that document production processes are complex and detailed, I sent to the committee last Friday a letter providing more information about the document production process and our role before that commission.
Department of Justice lawyers represent the Government of Canada in the inquiry before the commission. One of the primary responsibilities of our lawyers and paralegals is to disclose relevant documents for the purposes of the inquiry, which is standard procedure in investigations of this kind, public inquiries or even civil litigation.
The disclosure of documents in any investigation is a significant task. The government has already disclosed over 75,000 documents to the commission. The magnitude of the work is significant, given the logistical challenges of collecting, reviewing and disclosing each of those documents. This is a technical and complex process that requires a great deal of effort and time. I would like to acknowledge the dedication of the Department of Justice employees who have done this work to date.
In the context of this inquiry, disclosure of documents is an ongoing process. The government began disclosing documents to the commission in February 2021, and as the commission continues its investigation, new issues are raised that result in new document requests. This is customary in this type of investigation.
As a result, our team of lawyers and paralegals receives new requests for documents from the commission on a regular basis, as well as new sets of documents for review from the various government departments and agencies. The departmental team sorts through these requests based on the commission's immediate needs and the priorities of upcoming hearings.
A standard feature of document production in this inquiry and in civil litigation generally is the review of documents for legally privileged information. Privilege can apply to entire documents or to portions of documents, according to common law or statute—for example, the Canada Evidence Act.
I want to be very clear with the committee that this document review and production process to the commission is managed by the lawyers and paralegals in the Department of Justice. The Minister of Justice and the minister's office are not involved in this process.
As part of the document production process in early 2022, we reviewed the handwritten notes of four senior RCMP officers in order to produce them to the commission. There were over 2,400 pages of handwritten notes. As outlined in my letter, our team flagged 35 pages among those 2,400 as containing potentially privileged content. Knowing that there were hearings coming up with these officers, we decided to authorize the disclosure of the 2,400 pages, with the exception of the 35 pages that we were still reviewing for privilege.
Unfortunately, we did not alert the commission to the fact that we had not produced the additional 35 pages because they were being further reviewed. We've exchanged letters and spoken to commission counsel. I think the oversight was acknowledged and understood.
Only four of the 35 pages relate to the April 28 meeting—
View Raquel Dancho Profile
CPC (MB)
You have 10 seconds, sir.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:08
I'll finish in 10 seconds.
Only four of the 35 pages related to the April 28 meeting. These were in the notes of Superintendent Campbell. After our review, all of those documents were produced without redactions. They were produced on May 30 to the commission. The rest of the 35 pages, the 31, were also produced subsequently, some with redactions for irrelevant information.
We continue to work closely with the commission.
With respect to the disclosure process, the government is committed to fully supporting the commission's investigation.
I have full confidence in the dedication and professionalism of our Department of Justice lawyers and paralegals who are representing Canada before this commission.
I'd be happy to take questions.
View Raquel Dancho Profile
CPC (MB)
Thank you, Deputy Minister.
Do you have any comments to add, Mr. Rees?
View Raquel Dancho Profile
CPC (MB)
Thank you very much.
Colleagues, we will start our six-minute round of questioning with the Conservatives. I will begin that round of questioning for us, and I will start my six minutes now.
Colleagues, you are welcome to keep me on time as well.
I'd like to thank you both very much for being here today and also thank the deputy minister for being forthcoming with that information in his opening remarks.
You're aware that the Mass Casualty Commission has a public interest mandate to investigate the worst mass murder in Canadian history to get answers for the public. Is that correct?
View Raquel Dancho Profile
CPC (MB)
The Department of Justice also has the obligation to assist the commission in achieving its mandate to serve the public interest. Is that correct?
View Raquel Dancho Profile
CPC (MB)
You're aware that Chief Superintendent Chris Leather recently testified at the commission inquiry that he received legal counsel from the Department of Justice, your department, to withhold evidence from the commission unless specifically asked. That is, your department, the lawyers in your department, the counsel, told him to provide evidence reactively and not proactively. Is that correct?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:09
That is correct, but only with respect to what I guess is referred to now as this wellness report. I have three reasons, really, to explain why I think Chief Superintendent Leather misunderstood the advice he received.
First, our counsel met with Chief Superintendent Leather on July 5. It was during that meeting that we learned of the existence of this wellness report for the first time. From what I understand, it was a report that was commissioned a year after the events. What we counselled Chief Superintendent Leather to do was...because we hadn't seen the report yet. We didn't know the extent to which it was relevant—if all of it was relevant or if portions of it were relevant. It was obviously prepared for a different purpose.
So our advice to him was this: Don't raise it proactively, but if it comes up, answer the questions. That was the advice we gave to him. We gave no advice with respect to not being proactive with respect to two other pieces of information—one was about the April 28 meeting—because that information was already before the commission. As with all witnesses, we told him to be very forthcoming.
View Raquel Dancho Profile
CPC (MB)
Thank you, sir.
Just to be clear, we've been hearing a lot about these misunderstandings, as I'm sure you are aware, during this investigation. You're saying that Superintendent Leather misunderstood but that in fact your department did advise him to be reactive and not proactive, but it was specifically in terms of this wellness study that was being undertaken for Nova Scotia RCMP. I believe he was under the impression that the reactive approach was to be taken at large whenever he was asked questions by the commission or otherwise. It's odd how that misunderstanding is quite significant, I would say, and he shared that at the commission.
Are you aware, then, that the Honourable Thomas Cromwell, counsel director of the commission, wrote to department lawyer Lori Ward?
Can we ensure we're all muted? Thank you very much.
Are you aware of this letter, sent to the Department of Justice on August 6 from the Honourable Thomas Cromwell, commission counsel director? He was not familiar that this was a misunderstanding. He is under the impression that your department in fact asked Mr. Leather to be reactive in his testimony. Are you aware of the letter I'm referring to?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:12
I'm aware of it. The letter says that he is concerned to have heard of Chief Superintendent Leather's testimony and is asking us to confirm whether that's correct or not correct. We have responded to that letter. Lori Ward did respond to the letter on August 9 to explain what I just explained to you a minute ago.
View Raquel Dancho Profile
CPC (MB)
Have you advised anybody else to be reactive in their approach to the wellness report, or the commission generally, anyone involved in this case, in the RCMP or otherwise?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:12
No, this was a comment made to Superintendent Leather because it came up when our counsel was preparing him for an interview with the commission counsel the very next day. He brought it up at the prep and we had never seen this report. It was reasonable for us to say, “We'd like to see it and give you some advice before you raise it. But if questions come up, you have to answer the questions.”
View Raquel Dancho Profile
CPC (MB)
Thank you, Deputy Minister.
To be clear, you have not advised anyone to be only reactive and not proactive.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:13
No, and with every witness before the inquiry we have counselled them to be truthful and to assist the commission as much as possible.
View Raquel Dancho Profile
CPC (MB)
At any time since the 2020 Nova Scotia mass murder, was the department concerned about political interference from government? At any time, did you advise anyone about political interference?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:13
No. As I said in my opening remarks, we were not involved, or nobody sought legal advice on the April 28 meeting with respect to the disclosure of firearms information.
View Raquel Dancho Profile
CPC (MB)
Thank you.
You have not provided any legal advice to the Prime Minister's Office, the Minister of Public Safety's office, or any other ministerial office concerning the mass casualties.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:14
We've provided lots of advice to the government, but I think the allegations are with respect to the firearms information at the April 28 press conference and the subsequent meeting with the commissioner. We have not provided any advice with respect to those.
View Raquel Dancho Profile
CPC (MB)
Justice Canada's spokesperson Ian McLeod said that the final four pages of Chief Superintendent Campbell's notes were withheld until the end of May of this year because they required further assessment of whether they were privileged. We're very aware of this. What aspect of their content merited that further assessment, which took that additional three months to release Mr. Campbell's notes? Again, you will remember it's those four key pages that have really initiated this entire investigation.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:14
As I said earlier, those four pages were caught up in another group of 35. There were 35 pages altogether that we had flagged. We flag things for further review. Some things are legal advice. That's easy to spot. Some things may be cabinet confidence. Some may be public interest privilege. Depending on the nature of the privilege, our counsel will have to consult other people. It takes time to review them, especially since they are handwritten and sometimes we have to go back to our clients to understand the context within which those comments were made. The privilege review does take some time.
View Raquel Dancho Profile
CPC (MB)
Thank you. Our time is up.
We're going to go to the Liberal Party, with MP Noormohamed for six minutes.
View Taleeb Noormohamed Profile
Lib. (BC)
Thank you, Madam Chair.
Deputy Minister, it's great to see you here today, as well as your colleague. Thank you very much for coming.
I just want to follow up a little bit on the questions that my colleague, Ms. Dancho, just asked. I want to start off where she ended. There was this comment you just made about the fact that these four pages were caught up in the 35 pages, and we want to be very clear with folks as to why, for those pages, it took a little bit longer to ensure they were reviewed. Could you give us a very brief synopsis of what that review process looks like and why that might have taken a little bit longer to do?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:16
The privilege review process takes time, not just with respect to these 35 pages but with all of our review processes, depending on the nature of the information and the privilege that's been identified. You can imagine, for example, that if somebody mentions a Treasury Board submission or a cabinet document in their notes, we have to review it, find out what it's about and track down people who have information about it.
We usually consult the Privy Council Office to see if this is a cabinet confidence or isn't, depending on the tests from case law or from the Canada Evidence Act, section 39. That takes some time, and we have to consult others before we can complete the review.
View Taleeb Noormohamed Profile
Lib. (BC)
During your review, is there consideration for “politics” and whether there are going to be political implications for the government?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:17
As I've said, for us it's a legal test. Obviously, we want to provide all the information we can to the commission, given its mandate and given the importance of getting to understand what happened.
It's really a legal process that's done by our counsel and our paralegals in the Department of Justice. As I said, our minister's office has not been involved in any of it.
View Taleeb Noormohamed Profile
Lib. (BC)
Would it be fair to say that Department of Justice lawyers don't read something and say, “Oh, that might be damaging to the government so we should withhold it”?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:17
Yes, of course. The only question is whether it's relevant to the commission. If it's relevant, it needs to be produced, subject to some privileged information that may have to be redacted.
View Taleeb Noormohamed Profile
Lib. (BC)
Did you or your department ever instruct to withhold any information that should have been disclosed?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:18
It's because the mandate of the commission is very clear. Our job is to assist the commission. We'll provide them with all the information in the government's possession that's relevant to their mandate so they can discharge their mandate.
View Taleeb Noormohamed Profile
Lib. (BC)
For further clarity, what is the relationship between Department of Justice lawyers and the minister's office, if any?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:18
The minister is the Attorney General of Canada as well. He is accountable to Parliament for the work of our department. All of the employees in our department work on his behalf to discharge the obligations under the Department of Justice Act, in sections 4 and 5.
View Taleeb Noormohamed Profile
Lib. (BC)
The act specifies that there cannot be political interference—or the act does not allow for political interference by the Minister of Justice. Is that correct?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:19
There's nothing in the act that talks about political interference, no.
View Taleeb Noormohamed Profile
Lib. (BC)
Just to clarify the question, would there be a circumstance in which the Department of Justice would be concerned in this situation? Was there a situation where the Department of Justice lawyers, the bureaucrats, were concerned that they were getting political direction from the minister's office to withhold anything?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:19
As I said, our minister's office and the minister were not involved in any of the work being done by the department to support the government before this commission. I had no reason to be concerned about political interference. There were no discussions with the minister about this.
View Taleeb Noormohamed Profile
Lib. (BC)
There were no discussions with the minister, and you never instructed Department of Justice lawyers to withhold information.
Why do you think the misunderstanding Mr. Leather had came about? You talked about the circumstances around this. Why do you think he would have had that misunderstanding?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:20
You'll have to ask Chief Superintendent Leather why, but I think you've already heard some testimony from the commissioner and others on that issue.
As I said, we were not involved at the time. We didn't provide advice, so I really don't have anything I can offer on that.
View Taleeb Noormohamed Profile
Lib. (BC)
You were comfortable with the way in which the Department of Justice lawyers provided information in a timely fashion, handled the redaction process where required, and consulted with the appropriate folks to ensure that nothing was being withheld unreasonably. Is that correct?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:20
Absolutely. As I said, it's a very complex process with some tight timelines, and I think everybody is doing their best to support the government and support the commission and its work. I have full confidence in our counsel.
View Raquel Dancho Profile
CPC (MB)
You have 20 seconds, Mr. Noormohamed.
View Taleeb Noormohamed Profile
Lib. (BC)
Thank you. I will yield the rest of my time to the chair.
View Raquel Dancho Profile
CPC (MB)
Thank you, sir.
We will now go to the Bloc Québécois.
Ms. Normandin, go ahead.
View Christine Normandin Profile
BQ (QC)
Thank you very much, Madam Chair.
Mr. Daigle and Mr. Rees, thank you for joining us today.
Mr. Daigle, I would like to start with a question about your letter of August 12. The letter describes the mechanism for producing documents at the Mass Casualty Commission, or MCC, the reasons for redaction and the redaction process. However, it does not describe the document analysis process, which is precisely what we are interested in.
We are interested in the fact that the four pages were withheld, not in the fact that they were redacted, since they were not. I am curious as to why your letter does not address the process related to the documents being analyzed for potential redaction.
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:22
I'm not sure I understand the meaning of the question.
We received documents from seven departments, including the RCMP. We usually received them electronically. They are entered into our document management system and grouped by category.
One of the categories related to requests from RCMP officers. There were approximately 2,414 pages in that category. We have looked at all of those documents.
During the process, we noted that some passages in those notes raised potential privilege issues we needed to analyze. Since the commission needed those documents as soon as possible, we decided to send some 2,400 pages to it immediately and to continue reviewing the remaining 35 pages.
Our lawyers and paralegals had the 35 pages in question, and they consulted colleagues about them before determining whether or not those documents were privileged. If they were not, we could disclose them to the commission. If they were privileged, partially or totally, we would redact those portions.
View Christine Normandin Profile
BQ (QC)
I am with you on that, but it is the withholding of those documents while they are under review that interests me.
As I understand it, you started analyzing these 35 pages in January and February 2022. They were produced to the MCC on May 30, 2022. So it took about three months for the documents to be submitted to the MCC, since you were analyzing them.
Is that correct?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:23
That is correct.
We were not twiddling our thumbs during that time. We had other documents to analyze. The commission's priority at that time was the investigation files.
It was when we started preparing for the RCMP hearings that the commission told us that these documents were urgent. So we rushed and gave them the documents we could. It took about three months to review the remaining 35 pages.
View Christine Normandin Profile
BQ (QC)
I certainly wasn't accusing you of being lazy.
During those three months of analysis, I assume that you were providing updates to some officials in the Department of Justice, so that they would know how the analysis was progressing, whether there were any privileges to be respected and whether there was any case law. Surely, something was going on.
In that context, no one brought up the fact that the MCC was not aware that there were 35 pages missing from the submitted documents.
Is that right?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:24
As soon as we sent the approximately 2,400 pages to the commission, we should have notified it that we were withholding another 35 pages that were still under review. We did not, and that is what raised questions.
We have exchanged letters with Mr. Cromwell of the commission to explain ourselves. We have agreed on a process to ensure that the commission would be made aware if we were to withhold relevant documents because they are in the review process.
View Christine Normandin Profile
BQ (QC)
That's great.
So it was upon receipt of these documents, on May 30, that the commission realized that 35 pages were missing. During the three months of analysis, it did not know that pages were missing.
Did I understand correctly?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:25
The commission was not aware that we were withholding an additional 35 pages that we felt were relevant.
It was not until June 22 that Mr. Cromwell wrote us after hearing that four pages were missing. We then met with commission officials to explain what had happened.
View Christine Normandin Profile
BQ (QC)
In your letter of August 12, you reiterate that a party must disclose documents in its possession that are relevant to the proceedings and are not subject to privilege.
According to that letter, you began gathering documents for the commission around November 2020, right after the commission was created by order in council on October 21.
What is the process for document collection and production?
Do you automatically turn over certain documents to the commission or do they have to be subpoenaed before they are produced?
François Daigle
View François Daigle Profile
François Daigle
2022-08-16 11:26
I will ask my colleague Mr. Rees to explain the process.
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