Canada isn’t broken, but Parliament currently is.

Why hasn’t Parliament debated or passed any legislation for almost 30 sitting days?

Parliament has been stalled for almost 30 days. Stalled is putting it politely, actually.

Yes, the political theatre that is Question Period has continued unabated. But that’s it.

Why is Parliament currently so broken?

It boils down to a fight over documentary disclosure.

In short, Parliament adopted a problematic motion, the government refused to abide by it, the Conservatives moved a motion that their privilege was breached, and they’ve then filibustered their own privilege motion ever since. For weeks on end.

Now, I’m generally on the side of more transparency and accountability, including documentary disclosure. For example, I voted to support an inquiry into the SNC-Lavalin affair in 2019. And, in June 2021, I voted to order the production of unredacted Winnipeg Labs documents. I later sat on the Canada-China committee to study the issue, and the documentary disclosure was essential to our work as parliamentarians.

In contrast, last June I voted against the problematic opposition motion to order the government and Auditor General to share unredacted documents with the law clerk, and also order the law clerk to then share these same documents with the RCMP.

Before getting to the problematic elements of the motion, it’s useful to first understand why the motion was moved and what’s at stake.

It starts with a damning Auditor General’s report with respect to Sustainable Development Technology Canada, an independent crown corporation circa 2001 that’s focused on supporting clean tech.

The AG report found, among other things, that SDTC’s board completely failed to manage conflicts of interest appropriately.

More specifically, the AG found dozens of cases of poor or incomplete record keeping with respect to conflicts. Worse, it’s apparent that ethics rules were violated in a number of cases, where directors failed to recuse themselves.

Here are relevant sections from the report:

6.34 We found that Sustainable Development Technology Canada’s conflict‑of‑interest policies were not followed 88 times for directors and 2 times for consultants.

…

6.41 We examined the records of all meetings of the Project Review Committee and of the board of directors during our audit period—1 March 2017 to 31 December 2023. These records indicated that directors had followed the conflict‑of‑interest policy and declared conflicts of interest and appropriately recused themselves from voting 96 times.

6.42 However, we found 90 cases where, according to the foundation’s own records, its conflict‑of‑interest policies were not followed:

• According to the meeting minutes, the official corporate records, in 25 cases, directors participated in discussions and voted to approve funding to ultimate recipients despite having previously declared conflicts of interest. For about half these situations, directors informed us that either there was an error in the corporate records and they did not have a conflict of interest, or when they did have a conflict, they recused themselves from voting. While directors had the opportunity to correct the board’s meeting minutes prior to their approval at a subsequent meeting, such corrections were not made.

• Directors voted to approve portfolio‑wide COVID‑19 relief payments in 2020 and 2021. During those 2 votes, in 63 cases, directors voted while having previously declared conflicts of interest. For about a third of these situations, directors informed us that they no longer had a conflict of interest at the time of the votes. However, the foundation had not determined whether these declared conflicts of interest still existed at the time of the votes. Directors informed us that they received legal advice that recusals were not required. In our view, recusal was needed so as to meet the requirements in the conflict‑of‑interest policy.

We should all be interested in uncovering wrongdoing, and SDTC’s inappropriate actions have been the subject of various parliamentary committee hearings for many months now. Such parliamentary investigations were warranted and have resulted in significant documentary disclosure, albeit redacted (I can’t speak to all redactions, but some I’ve seen are obviously to protect the privacy of irrelevant third parties).

Since Parliament resumed in September, I’ve been a member of the Public Accounts committee, with a front row seat to this ongoing parliamentary investigation into Conservative allegations of “corruption.”

After countless hours of testimony, we’ve learned:

• The AG report stands. Some of the conflicts were only potential and unrealized, but that doesn’t detract from the mismanagement of conflicts and record-keeping.

• As per the report, two-thirds of the conflicts related to a blanket approval of pandemic support for previously SDTC-approved companies. Per both the AG report as well as a subsequent Ethics Commissioner report, directors acted on the basis of incorrect legal advice, though of course this did not absolve them from the conclusion that ethics rules were violated.

• The government acted to implement the AG’s recommendations, to pause SDTC funding approvals, and establish a transition team to review every single approval and to roll SDTC into the National Research Council, with stronger governance.

• There has been no evidence of corruption, embezzlement or other criminal activity.

On this last point, I directly asked the Auditor General and Ethics Commissioner if they had seen any evidence that raised any concerns around criminal conduct.

Here’s the relevant part of my exchange with the Ethics Commissioner:

Nathaniel Erskine-Smith:

…when I hear that language of “green slush fund”, it sounds like bribery or embezzlement. It sounds like fraud. It sounds like there is something criminal there.

There were 90 conflicts of interest identified by the Auditor General in which processes were not followed. In 96 cases, they were followed. In 90 cases, they weren't followed. That's damning on its own, as you've said; in almost half of the cases, the policies were not appropriately followed, and 63 of those cases were those two COVID votes.

You've done a proper report with respect to Ms. Verschuren. You found two ethics violations. You did a proper report for Mr. Ouimet. You found that there was an ethics violation that was so de minimis that it was not of sufficient concern.

For the Canadian public who have followed these proceedings in passing and have heard language like criminal accusations and about “green slush fund”, you've looked at this in detail. You have the expertise. Is there any reason to think that there was criminal conduct here?

Konrad von Finckenstein, Conflict of Interest and Ethics Commissioner:

No. If there had been any reason for me to believe that there was criminal conduct, I would have immediately stopped my investigation and referred the matter to the RCMP. I am obliged to do that by the act.

Nathaniel Erskine-Smith:

In all of your review of documents, your interviewing of witnesses, the Auditor General doing the work and then your pursuing this further, not a single piece of evidence, not a single bit of testimony has caused you to pause and say, “Maybe I should refer this matter to the RCMP”.

Konrad von Finckenstein, Conflict of Interest and Ethics Commissioner:

No, there was nothing.

I listened to the examination of both Ms. Verschuren and Mr. Ouimet in entirety, which I always do in order to get a feeling or an assessment of the veracity of what they're doing, the credibility of what they are saying. It was clear to me that this was a fund that was—let's be kind—sloppily organized and operated, but there was nothing illegal from the evidence that I was presented with such that I would have said, “Hey, I should stop right now and refer it to the RCMP.”

Here’s the relevant part of my exchange with the Auditor General:

Nathaniel Erskine-Smith:

We had the Ethics Commissioner before this committee. He went into some detail about his findings in the Verschuren report. He was very clear that he didn't see anything criminal. He didn't see any corruption such that he would, as he described it, per his legal obligation, refer the matter to the RCMP. This committee has been marked, though, by accusations of corruption and criminality. I would love to get to the bottom of whether that existed. I've not seen a single piece of evidence to suggest that kind of criminality.

Maybe you can provide that. You did a deep dive. You have seen documents I haven't seen. You issued a damning report, certainly, on poor record-keeping and ridiculous conflicts of interest that shouldn't have existed and that should have been better managed.

However, did you come across any evidence such that you were concerned there was criminality that should be referred to the RCMP?

Karen Hogan, Auditor General of Canada:

In the course of our audit, we did not uncover anything that we felt was potentially criminal in nature. We leave that decision up to the RCMP. We would have referred a matter to them, and we did not in this case. We did talk to them subsequent to our report being made public and, as I previously testified, if they want access to it, we are happy to comply with the production order.

Now, let's return to the motion, adopted by Parliament in June, that orders the government and the Auditor General to produce SDTC documents to the RCMP, via the parliamentary law clerk.

First, as laid out in some detail above, there is no evidence of criminality here.

Second, the RCMP would not be able to use the documents in any proceeding, and already have the power to obtain documents in a Charter compliant manner should they be relevant to a criminal investigation.

Here’s an excerpt from the RCMP Commissioner’s letter on the matter:

...the RCMP's ability to receive and use information obtained through this production order and under the compulsory powers afforded by the Auditor General Act in the course of a criminal investigation could give rise to concerns under the Canadian Charter of Rights and Freedoms. It is therefore highly unlikely that any information obtained by the RCMP under the motion where privacy interests exist could be used to support a criminal prosecution or further a criminal investigation.

Third, and a smaller point, the Auditor General has refused to comply with the motion on the basis that doing so would undermine her independence and effectiveness of future audits (she argued instead that any additional documentary production should come from the government and not her office).

Lastly, and most importantly, parliamentary experts have told us that the motion is an abuse of process.

Former parliamentary law clerk Rob Walsh has said it’s an “abuse of its powers for the House to use its power to demand and get documents from the Government in order to transfer them to a third party that wouldn’t otherwise receive them.”

Former senior parliamentary counsel Steven Chaplin has written that “there is no constitutional basis in the law, powers, and privileges of the House to order documents to be given to the RCMP through the Office of the Law Clerk, particularly when there’s no parliamentary purpose or proceedings for which said documents are to be used or considered.”

The current law clerk Michel Bédard called the order “unprecedented and unusual” and stated that “parliamentary privilege does not exist so that the House can assist outside powers like the judiciary or police forces to conduct their functions.” He then reiterated that “if the intent is to have the documents used as part of an investigation of the RCMP or as evidence before a court of law, it’s at odds with parliamentary law.”

So, to sum it up: after significant documentary production and countless hours of testimony, there’s no evidence of criminality. The documents cannot be used by the RCMP in any event. And the order amounts to an abuse of parliamentary process.

There is good reason to criticize what happened at SDTC. Too much public funding was at stake for such a cavalier approach to record keeping and managing conflicts.

But the opposition has also gone far too far, throwing around accusations of corruption and criminality without any justification. I just sat through yet another meeting earlier tonight where Conservatives accused the former SDTC chair of self-dealing and insider trading, without offering any evidence at all. They’ve tried to smear her as a “Liberal insider”, knowing full well that she’s previously served in appointed roles under Brian Mulroney, Stephen Harper, and Jim Flaherty.

They are in the business of character assassination, facts be damned.