HANSARD
Printed and Published by Nova Scotia Hansard Reporting Services
Ms. Maureen MacDonald (Chair)
Mr.Chuck Porter (Vice-Chairman)
Mr. Keith Colwell
In Attendance:
Ms. Charlene Rice
Legislative Committee Clerk
Ms. Evangeline Colman-Sadd
Assistant Auditor General
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HALIFAX, WEDNESDAY, DECEMBER 5, 2007
SUBCOMMITTEE ON PUBLIC ACCOUNTS
9:00 A.M.
CHAIR
Ms. Maureen MacDonald
MADAM CHAIR: Order. I'm going to call the subcommittee to order, please, and we will get underway. I think at the outset I would ask Mr. Colwell to make a motion that our session not be held in camera, that we go into the public domain.
MR. KEITH COLWELL: Oh yes, we are not going to discuss any documents today
at this point.
MADAM CHAIR: We are not going to discuss the content of any documents. We are going to discuss broadly how we are going to deal with documents. That is what we will do.
MR. COLWELL: Okay. I so move.
MADAM CHAIR: Thank you. I concur with that motion. So, at this point, we will be on the public record. I want to start by saying that Mr. Porter isn't here. He advised, when we scheduled this meeting, that he was unavailable for any subcommittee meetings until the new year. I indicated to him that if the PC caucus wanted to substitute in a member, that they were certainly welcome to do so and that the work of the Public Accounts Committee couldn't hinge on the availability of one member and that we needed to proceed, that today's meeting would be to deal with the question of how we are going to handle the large amount of documents that we are receiving from the Office of Immigration as well as the documents we are not receiving from the Office of Immigration, and further witnesses on this and other topics. So that's really what our agenda is here today, and I think we can proceed.
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I also am a little disappointed that there isn't anybody here, because I had hoped that maybe we could get some clarity around the point of order and the point of privilege that have been raised by Mr. Porter; the point of order he raised in the Public Accounts Committee last Wednesday and the point of privilege he raised in the House subsequent to that. I guess without someone here who can speak a little further to that, we are without that information.
At any rate, let's first deal with the question of the documents that we are receiving. Just this morning, the office had somebody come over with a package, and there is a letter in this package. I asked the clerk to make a copy.
MR. COLWELL: We should open the door and ask the media out there if they want to come in. We are not in camera, right?
MADAM CHAIR: Oh, yes, certainly. We are not in camera in anymore. We've had a motion to open this, yes. (Interruption) Certainly, yes.
MR. COLWELL: I just want to get straight what our schedule is. When are we going to meet again as a whole committee?
MADAM CHAIR: We have January 16th as the first meeting that we are having in the new year as a full committee.
MR. COLWELL: The topic on that is going to be what?
MADAM CHAIR: The topic of that is wait times. My feeling is that we should keep that meeting set . . .
MR. COLWELL: I would agree with that.
MADAM CHAIR: . . . because wait times are a very important issue. This is a piece where we are following up on the Auditor General's Report from some time ago, as well.
MR. COLWELL: I would agree with that. That is no problem. What is the next thing we have?
MADAM CHAIR: The Auditor General had requested an in camera meeting on his report in January and then a session following the in camera meeting the end of January, and that has, at the request of the Auditor General's Office, been moved to February.
MR. COLWELL: February.
MADAM CHAIR: They have asked us to move that toward the end of February.
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MS. EVANGELINE COLMAN-SADD: Yes, February 20th and February 27th.
MADAM CHAIR: February 20th and February 27th. So that gives us a block of dates in January and February to pursue the questions regarding the Office of Immigration and the Nominee Program.
I would like to give you this letter that came this morning from the Office of Immigration. You will remember that when they were in front of us last week, at the end of the meeting I asked that by this morning they provide us with a list of the documents that they have withheld. So we do actually have a list of documents here. We haven't made copies of this yet because it arrived at 9:00 o'clock this morning, but you are certainly free to have a look through it and we will make copies as soon as we can to give to the caucuses.
MR. COLWELL: Do you mean to tell me they are going eliminate 5,500 copies out of this 10,000.
MADAM CHAIR: No.
MR. GORDON HEBB: No, I think what they are saying is that there are 5,500 documents they haven't reviewed yet. Isn't that what they are saying?
MADAM CHAIR: Yes. They have been referring to 10,000 documents. We have 4,300 documents of the 10,000. We now have a substantial list of all of the documents that have been withheld. This is like an index. You are free to have a look at it. It is an itemized list of what has been withheld, and the basis; solicitor-client privilege, Cabinet, because it is a Cabinet document. I think mostly those are the two categories. They haven't withheld information that is proprietary in terms of business. We are getting that. They haven't withheld information on individuals on the basis of individual privacy, protection of personal privacy. We are getting that, although we haven't released that information. I believe this probably is the same list the Auditor General is looking for.
MS. COLMAN-SADD: We would like to get a copy of that list from the PAC, a copy from the Office of Immigration in terms of what they might not provide.
MADAM CHAIR: Yes, we certainly will give you a copy of this, as well.
MS. COLMAN-SADD: That would be great.
[9:15 am]
MADAM CHAIR: So, this is very interesting. I think that one of the things then is how we're going to deal with the documentation of, first of all, the materials we do have.
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We made a decision last time that we would not disclose the personal information of individuals identified in materials coming to us - like individual nominees, for example - unless we had permission to do so. I've been told that in the subsequent number of documents we received, there's a lot of personal information - people's bank accounts, driver's licences, social insurance numbers, these kinds of things - and this is information that we really need to protect. It will require the allocation of some staff, probably from the Legislative Library and Clerk's Office to do the tedious work of going through and blanking that information out. That's the first thing.
The second thing is the material has all been released to the various caucus offices, but I had the Clerk send instructions on how personal information is to be dealt with - I think I'll send another one, just to reiterate that in the subsequent bunch of documents we have this very sensitive personal information that has been given to the committee that we don't want to release.
Additionally, there are documents that are being identified in terms of proprietary information around businesses, but the department, as I looked at these documents, have used that in a very broad way. We're not getting business plans, we're not getting financial statements from businesses, we're not getting income tax - we're not getting some of the materials we had like with S&J Potatoes - we're just basically getting the names of companies, some of the players who are the principals, you know, the CEO of the company. In my view there's no harm to that company if this information - they've used a very liberal interpretation of proprietary information with respect to businesses. That's what I think, but I don't know what your caucus feels about that, what your researchers have determined.
MR. COLWELL: Just on the surface, I haven't had a chance to talk to the researchers in detail about it, but we should get business plans and we should get all those things that go in conjunction to see if they were good companies to do deals on these things or not. Some of them, according to the people who come here from the Nominee Program, had gone bankrupt in the meantime, so they didn't do their proper investigation of the companies. That information should be provided but, again, with the same restrictions as we have with personal information.
That personal information, I would think the government would be more interested in conserving that than business information, which is not as confidential, or shouldn't be as confidential as people's social insurance numbers and things. So that information we really should get and just see - and before we didn't release any of that information. I have no intention of recommending we release any of the information, but it would be nice to see overall how well these companies performed and if indeed they did their due diligence. I can see we're going to have another fight on our hands again with this department hiding information.
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MADAM CHAIR: Okay, I guess what we will do is continue with the same instructions to staff with respect to the removal of any personal information around individual nominees, their names, their social insurance numbers, banking information, driver's licence - any personal information needs to be severed from documents.
In addition, we need to have some concern around the kind of proprietary information with respect to businesses.
I think that if we get into a situation as you're going through documents and you have questions, put those documents aside and we can help you with that, give you some advice on what our views would be if there's a small group of documents that need some more scrutiny, is that agreeable? We'll do it in that way, okay. That's the first thing.
So I think we're relatively clear on how we're going to handle the documents. There's a secondary question here, though, which comes from Mr. Porter's concern around releasing documents before the committee has met as a whole. If I understand his concern properly, he is concerned that the subcommittee met, we had Immigration here, we heard their concerns on documents that they asked us to see in camera only. We made a decision about how we would deal with those documents, we also made a decision to put those documents in the library, to release documents and place them in the library.
His concern, if I understand it properly, is that we did not have the authority to make that decision, that only the full Public Accounts Committee has the authority to make that decision and this is his point of order. I would like to maybe hear Gordon's view or, if that's not fair, to ask you to give a view right now to get some advice from you at a future date on that.
MR. HEBB: Certainly I can answer that - that's my understanding of his point of order. What I think he's saying is that the authority of the subcommittee is merely to recommend to the whole committee and that the actual decision must be made by the committee. Whether he is right or not, I couldn't give you an answer. That would depend on a number of things.
As I understand it, and I'm not familiar with it, but there is a general mandate or set of guidelines that the whole committee some time ago has set up for the operation of the committee and its subcommittee and whether that would give the subcommittee authority, I don't know. As I say, I wasn't at the whole meeting, I don't know whether there was any resolution of the whole committee that would have given that authority. If both those things are silent, certainly there could be some argument as to what the past practice has been with respect to the subcommittee, and again I do not know, I don't attend all the meetings of the committee, but those would all be factors that would have to be looked at to determine what the authority of the subcommittee would be. It could be resolved, though, by the committee dealing with the issue and giving that authority. That's all I could say at this point.
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MADAM CHAIR: Mr. Colwell.
MR. COLWELL: It's my understanding that these rules were set in 1993 and the committee has been operating under those ever since. It doesn't mean that maybe we don't have to change something or do something to verify that but I think the issue here, again, is that we have to wait until the ruling of the Speaker because that will ultimately be what we have to go by.
The committee has done this, they've done it - precedent has been done with the three members of subcommittee being the same and we looked at S& J Potatoes and Magic Valley - the exact same situation. So is this a bigger problem that the government has and they don't want to proceed this way? I don't know, it sounds more like politics to me than a reality of a concern.
MADAM CHAIR; Mr. Hebb.
MR. HEBB: Yes, I just want to clarify that the Speaker is able to rule on the point of privilege raised in the House. The Speaker cannot rule on the point of order that is raised at the committee. Point of order raised at the committee is determined by the chair of the committee. There is an appeal from that decision to the full committee and there can be an appeal, there could be an appeal from the decision of the committee to the House - not to the Speaker but to the House, if a member chose to take it there - they would have to give a notice of motion and it would have to be done the way any motion would be done before the House, yes.
But, normally, it would just be a decision by the Chair and then the decision by the committee as a whole, if some member of the committee wished to contest the decision of the Chair. There's no role in that for the Speaker. But, if it does, in some way, constitute a point of privilege, then that legitimately is brought in the House and not really in the sense ruled on by the Speaker - the Speaker determines if he feels there's a prima facie case for a point of privilege and then again that is determined by the House. The usual way in Nova Scotia, but generally, the way that works in parliaments of our tradition is it would most frequently be referred then to a committee of the House to look into the matter.
If the Speaker decides it's a prima facie case - in most cases the Speaker rules there is no point of privilege and there are far more raised than there actually ever are - the committee would look into it and then make a recommendation back to the House to see what the House wanted to do. Although, the House could deal with it right away, but that's the normal route of a point of privilege. There are two different sort of routes.
Not to say there can't be a connection between the two, perhaps because of a procedural matter. I'm not saying there would be, but perhaps there might be a point of privilege that would be raised in the House. Privilege wouldn't be raised in the committee.
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MADAM CHAIR: For the purpose of trying to make this process work and not to violate any rules - the committee has been operating in this way for quite a long time, as Mr. Colwell has pointed out. This was the assumption that we had when the full committee asks the subcommittee to do something - which they agreed, I think, last time we met before we had a subcommittee meeting, they had asked us to look through the documents and make decisions on their behalf. If we had a motion from the full committee to establish this practice more clearly, would that address the concerns?
MR. HEBB: Possibly. You'd have to really look to see whether that's within the authority of the committee to be able to make that delegation. There certainly would be some things that could be delegated safely to a subcommittee and there are others that certainly couldn't.
For example, the committee has power to issue subpoenas. I don't for one moment think it would be proper or even within the authority of the committee to delegate that authority to the subcommittee. I think that would be beyond the powers of the committee. I think it's going to depend on the nature of the decision being made. I don't think there's any problem with delegating agenda items to determine when you're going to consider things.
MADAM CHAIR: It has always been sort of an administrative function, rather than have the whole committee try to work through the list of witnesses and the scheduling and documents and stuff, to have representatives from each of the caucuses do that.
MR. HEBB: So, on releasing documents, it may depend upon, for example, the nature of the document - whether someone has claimed privilege on a document but has presented it and doesn't want it released, maybe it's going to be something that has to be decided by the whole committee. On the other hand, if it's not something perhaps that anybody has claimed any privilege over, but is just being provided, maybe that's a decision of the subcommittee - it's not necessarily going to be very black and white.
I can't say off the top of my head that you could just simply pass a resolution and then the subcommittee can have the full power of dealing with all the documents.
MADAM CHAIR: Could we ask you to consider this further and give us some advice.
MR. HEBB: I can certainly consider it further, yes.
MADAM CHAIR: Yes, give us some advice on this, that would be greatly appreciated. Thank you.
Now, I'd like to deal with the large number of documents that we haven't received. We've now received this list saying there are a lot of documents that are being held back for
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various reasons. We haven't had time to really look through that in any way to see to what extent we concur with what's being withheld.
[9:30 a.m.]
MR. COLWELL: There is no way to tell from that list anyway.
MADAM CHAIR: There are certainly client-solicitor documents - documents that are being referred to as client-solicitor privilege - and they do have dates attached to them that come from probably the time at which there was legal action started against the government on this. We'll have to look at that, but they also go back quite a ways as well, and Cabinet documents that go way back to 2001, I see. So I'm not sure exactly how we'll deal with this.
MR. COLWELL: I will suggest maybe why don't we just get a copy of those documents that have been withheld and maybe have another subcommittee meeting to discuss this again in the new year? Mr. Porter can come back. I would really like to have him here.
MADAM CHAIR: Yes.
MR. COLWELL: I'm willing to move without him, quite frankly, but I would rather have him here and get the view of their caucus on these issues before we move ahead. I would like to get the list of those documents, have a look at them, and it's the same as before, and we are going to have to make a decision, as a subcommittee, to recommend to the regular committee how we're going to handle all these documents.
It makes me really annoyed to think that they're supplying us with personal information on people which we could be very personally liable for if it leaked, but not the information on companies, that is general information if you would look around a little bit on the company anyway. So there's something fishy about this whole thing. It seems like they're trying a massive cover-up, or whatever the case may be. I wouldn't want to say that it's a cover-up, but it just smells bad, and when something smells bad, it usually is bad. So I would like to have a look at those documents, and some time to look at these and think about them and just see how we're going to handle this, and probably have another subcommittee meeting very early in the new year. When did Mr. Porter say he could come back?
MADAM CHAIR: In the new year, he said January.
MR. COLWELL: Okay, well, maybe I would suggest we set a new subcommittee meeting up prior to our meeting on January 16th, I think would be appropriate, and have a meeting. Hopefully he can come.
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MADAM CHAIR: January 9th.
MR. COLWELL: January 9th, let's do that and, in the meantime, let's just let everything sit, give the departments time to get more information to us, it gives them lots of time, especially with the Christmas break coming, and then move from there.
MADAM CHAIR: I agree.
MR. COLWELL: And give Mr. Hebb also time to get the information and to request it. I think that's very important, as well.
MADAM CHAIR: Yes, I would really like to be able to, when the Public Accounts Committee reconvenes on January 16th with the wait times, give a decision on the point of order at that time. That will be the first opportunity I have to do that.
MR. COLWELL: It would be good to have the subcommittee meeting prior to that.
MADAM CHAIR: Prior to that, yes, excellent. So the next thing we have to decide is witnesses for future meetings. I would like to recommend that we schedule the Deputy Minister of Economic Development, Paul Taylor, and Chris Bryant, as well as Brad Pascoe from the federal government, the Immigration folks. There was a lot of correspondence from Mr. Pascoe early on, outlining concerns he had about some features of the Nova Scotia Nominee Program, and he was representing the federal government in this.
MR. COLWELL: I would like to see when we're going to do this. We never have enough time at the Public Accounts Committee. If we're going to do that, I would like to see the federal guy come by himself and whatever staff he wants to bring, or whatever support he brings, have that as one issue, and Economic Development as one issue, because if not, members just don't have enough time to ask enough questions to get down to the issue.
MADAM CHAIR: Well, we could look at a longer meeting. We could look at a three-hour meeting instead of a two-hour meeting with a break in-between. We could begin with the federal person. I doubt that two hours for this one person is really a good use of our time. I think if we brought them in as a focus - the Department of Economic Development was involved early on in the process. Chris Bryant was involved very early on in the process. Paul Taylor was not the deputy minister. I don't know, we could bring in the former deputy, Ron L'Esperance, as part of our group, as well as Mr. Taylor.
MR. COLWELL: That would probably be better.
MADAM CHAIR: As well as Mr. Taylor. That is a possibility. So I think we need to schedule that early on and maybe go for a three-hour meeting, with a break in-between,
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and have all of those people there and get that portion of what it is we are looking at dealt with.
I had also talked at our subcommittee meeting in the past about using a half day of hearings, like the Law Amendments Committee process, with a public service announcement of some kind to let people know, the nominees know, that they have an opportunity to come to speak to the Law Amendments Committee on their particular concerns and their experiences of the program. Then, in addition to that, I know that there has been discussion about bringing forward the various ministers who were on this file from beginning to end pretty much. So we could actually start scheduling those hearings now for January and February - what are your views on that?
MR. COLWELL: Well, I don't have any problem going with a three-hour meeting and bringing in the federal guys, and I really would suggest we bring the former deputy minister in as well because he would have more intimate information than the present one, even though the present one would be brought up to date on what is going on with it. I think that would be fine for our January 23rd meeting.
Anything past that, I don't really want to schedule right now because I really want to have Mr. Porter here, not that it will change my mind once scheduled, but we can have our subcommittee meeting and that subcommittee meeting will give us time to schedule things past that. I like the idea of half-day meetings and have people come in to discuss this, whether they are businesses that have bad experience with it or good experience with it or individuals who have had good or bad experience with it - whatever the case might be. I think that is something we should look at. I'm interested in hearing what Mr. Hebb says, too, about Mr. Porter's point of order to the committee. I am interested in that.
January 16th and January 23rd, no problem. Anything past that, I think we should just wait until we get another subcommittee meeting and get more information, more documentation too, because this documentation is the key to having these meetings. If we don't have the documentation, it's no good having the meetings, and there is no need to rush these meetings because the thing is we want to get to the bottom of what happened and also give the Auditor General more time to work with their stuff as well.
I have one question for the Auditor General, if I could.
MADAM CHAIR: Yes.
MR. COLWELL: All the information that they are refusing to give to us, or trying to refuse to give to us, that will be available to you?
MS. COLMAN-SADD: I am not certain that it will be, no.
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MR. COLWELL: That causes some problems.
MADAM CHAIR: I understand that the Auditor General has written a letter to the Office of Immigration lawyers, to the Department of Justice?
MS. COLMAN-SADD: That is correct.
MADAM CHAIR: It has gone to the Department of Justice?
MS. COLMAN-SADD: As we sit here, it should be on its way. It has not actually gone yet.
MADAM CHAIR: So the Auditor General is writing the Department of Justice lawyers with regard to the question of what documentation is being withheld from the Office of Immigration.
MS. COLMAN-SADD: That is correct.
MR. COLWELL: From the Auditor General.
MADAM CHAIR: From the Auditor General.
MR. COLWELL: This is insane. I mean they should have access to every single document that is there because they don't report on documents, they report on the overall issue.
MADAM CHAIR: I also have a question for the Auditor General's Department. Yesterday we had a brief conversation about what documents the committee was getting, and copies of all of our documents are being sent to the Auditor General's Office. We have been doing that now right from the outset, but I recall in the past Roy Salmon, when he was the Auditor General, being at Public Accounts one time and I was actually asking him a question and I asked him to table a document that he had made some reference to and he told me he couldn't, that it was a Cabinet document, but my recall is that the Auditor General's Office had access to Cabinet documents when they do audits, is that accurate? Is that an accurate memory?
MS. COLMAN-SADD: With regard to Cabinet documents, I believe it is government's position that the Auditor General's Office does not have access to Cabinet documents. Exactly what is a Cabinet document, I think remains to be defined. It is the Auditor General's position that we have access to any documents we require to do our work - there are not any exceptions noted in the Auditor General Act.
MADAM CHAIR: Yes, okay, thank you.
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Mr. Colwell.
MR. COLWELL: This is, I would say, to be polite, insane. I mean the Auditor General is here to keep track of what happens in the province for better government, to make sure that money is spent properly. I've got a real big concern with that, and I would have the same concern when I was in government because if things are being hidden or buried, as it appears to be with all these documents we're not going to get, and I can see the committee not getting some of these documents for obvious reasons, but the list shouldn't be as big, but the Auditor General should definitely have access. When you look at that, when you look at a Cabinet document after being in Cabinet, you may flag something you think is wrong but when you read the Cabinet document you may say yes, that was the right decision at the time based on all the information. But if you get only part of the information, how can you properly do your job? That's like saying you really don't need the Auditor General if that's the case, and I think we desperately need them to keep government honest and to make sure that they are spending our money properly. I've got a big problem with that, a huge problem, and I know our caucus will have.
MADAM CHAIR: But you have a concern, and we'll certainly work with the Auditor General's Office as a Public Accounts Committee to provide whatever support we can to ensure that the Auditor General's Office is able to do their work and know the public has a great deal of confidence in that, in your office. I think it is incumbent on us to ensure that you get access, full access to what you feel you need.
We also, we too have a legal opinion from Mr. Hebb about the extent to which this committee can get documents and the distinction between public interest immunity, documents that can be withheld because it's not in the public interest to disclose certain documents, but this whole question of Cabinet confidentiality to protect individual members of a Cabinet or the government as a whole is questionable, I think. So we have a lot to discuss after we look at what's being withheld.
So we've made a few decisions here this morning. We're going to have a subcommittee meeting on the 9th of January, and at that time we'll be attempting to deal with the documents that have been withheld and further witnesses. We'll get more information and advice from legal counsel. I'll get more information and advice, which I'm happy to share, on the point of order that has been raised by Mr. Porter about the extent to which this subcommittee has any authority to do some of the things that we have been doing and have been doing for a long time.
I think I said we'll schedule further witnesses, and maybe at that time we'll have more information about documentation that the Auditor General is actually being given access to as well. So we have a meeting scheduled of the full committee for the 16th of January on wait times, and that will proceed because that's an important issue. Then we'll
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bring in Mr. Taylor, Mr. Bryant, Mr. L'Esperance, and Mr. Pascoe for an extended meeting on January 23rd, if we can do that.
Is there any other business?
MR. COLWELL: I move that we adjourn.
MADAM CHAIR: Thank you. We stand adjourned.
[ The committee adjourned at 9:45 a.m.]
