Government still redacting, withholding ‘green slush fund’ docs despite Speaker ruling it shouldn’t

Withholding the information is significant because it appears to fly in the face of the Speaker's ruling by Fergus that the government likely had no right to do so

Published Oct 21, 2024  •  4 minute read

Speaker of the House of Commons Greg Fergus during question period, Thursday, September 19, 2024. Photo by Adrian Wyld/The Canadian Press/File

OTTAWA — The Liberal government is still providing redacted documents and withholding others on the so-called “green slush fund” from the House of Commons nearly one month after Speaker Greg Fergus scolded it for doing just that.

In a letter tabled in Parliament Monday, Commons Law Clerk Michel Bédard told MPs that he had recently received new documents from three government departments relating to Sustainable Development Technology Canada (SDTC). In all three cases, information was withheld.

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“All three government institutions provided documents containing redactions and/or withheld some pages purportedly relying on the Access to Information Act,” he wrote to Speaker Fergus about Finance Canada, Innovation, Science and Economic Development and the Treasury Board Secretariat.

Testifying to MPs on the Public Accounts committee Monday, Bédard said that meant the three departments are still failing to comply with an order by the House of Commons.

In June, three opposition parties banded together to pass a Conservative motion ordering the public service, the auditor general and SDTC to provide all documents on the latter to Bédard. The motion did not provide for any information to be redacted or withheld.

The “unprecedented” motion then called on Bédard to provide the documents to the RCMP.

The fact that government organizations are still withholding information that was ordered by the House of Commons in June is significant because it appears to fly in the face of a ruling by Fergus last month that they likely had no right to do so.

“The House has clearly ordered the production of certain documents, and that order has clearly not been fully complied with,” he said in a Sept. 27 ruling.

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Because of that, Fergus found he “cannot come to any other conclusion but to find that a prima facie question of privilege has been established” and suggested the issue be sent to a committee for further study.

In other words, Fergus found the government had likely violated the Commons’ “absolute and unfettered” constitutional power to call for information.

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During the committee meeting Monday, Conservative and Bloc Québécois MPs were concerned that the government had not only apparently violated an order from the House, but continued to do so since Fergus’ ruling.

In a report published in the spring, Auditor General Karen Hogan concluded that one out of six projects funded by STDC that she audited were ineligible and that the organization had serious governance issues. On the day her audit was published, the government announced it was abolishing the fund and folding it into the National Research Council.

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Since Sept. 27, the House of Commons has been at a procedural gridlock as Conservatives, the NDP and Bloc Québécois call on the government to fork over all the unredacted documents.

The Liberals have said the motion is akin to politicians ordering around the RCMP and vastly exceeded the powers of the House of Commons. They are pushing for the issue to be studied by the Commons Procedure committee.

Until the issue is settled, no other business can move forward in the House of Commons unless explicitly agreed upon by a majority of MPs.

Testifying at the Commons Public Accounts committee Monday, Bédard said that only eight government organizations had forked over all their unredacted records on SDTC. The vast majority of others (22) had either withheld documents or redacted them.

“We’re talking about documents, sometimes hundreds of pages, that have been withheld, and redactions that are not only about personal information but also solicitor-client privilege or other motives under the Access to Information Act,” he told MPs.

But he noted that parliamentary privilege, which grants the House of Commons the power to compel the production of documents, “supersedes over ordinary law, so it will prevail over the Access to Information Act, the Privacy Act, and, for example, solicitor-client privilege.”

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At the same time, Bédard shared the view of RCMP Commissioner Mike Duheme that it is unlikely that any of the documents obtained via the order could be used by prosecutors in an eventual criminal proceeding.

He said he concurs with the RCMP that there is risk that the documents could give rise to a violation of Charter rights against unreasonable search and seizure.

“It is doubtful that these documents could be used as evidence before courts of law,” he said.

In an interview earlier this month, Duheme said that the SDTC documents provided by the House of Commons are beyond the normal reach of investigators and have put the force in a legal “grey zone.”

“First, it’s a little unusual how they were obtained. Second of all, there may be some documents that are shared with us that we would have no judicial authority to get them, no means to obtain search warrants in order to get them,” he said.

“I am concerned with regards to privacy,” he added. “I am concerned with how these documents were collected. Are there any parliamentary privilege associated with some of these documents? These are just some of the concerns … there’s a lot to untangle there.”

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