Commons law clerk says government went too far in redacting WE Charity documents

The House of Commons law clerk says public servants went too far in redacting the WE Charity documents released to MPs last week — and warns the cuts may have violated a production order from the finance committee to hand over all internal correspondence related to the summer student grants program.

The government released thousands of pages of documents related to the WE matter, as the committee requested last month. But rather than have the independent law clerk redact certain information, such as cabinet confidences and personal information, the various departments responsible for this aborted program did the blackouts themselves — an apparent contravention of the committee's request.

The end result was hundreds of blank pages and blacked-out content — information only known to the public servants who red-penciled the material.

The finance committee requested all memos related to the WE Charity contribution agreement and clearly stipulated that any redactions should be "made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons" — not government censors.

Last week, a spokesperson for the Prime Minister's Office told CBC News that the redactions were done by the parliamentary law clerk, who was following the committee's direction to remove documents covered by cabinet confidentiality and personal information about Canadian citizens.

But that law clerk, Philippe Dufresne, said in a confidential August 18 letter to the clerk of the finance committee that the vast majority of the blackouts had been done by government bureaucrats — and some relevant information relating to the $912 million deal with WE may have been withheld, something which could constitute a breach of parliamentary privilege.

Ottawa-based news outlet iPolitics first reported on Dufresne's letter.

Dufresne raised red flags about the redaction process, saying his office did not have a chance to review the written material in its original form as the committee had intended. He also said the redactions his office did were limited to the personal information of public servants working on this file.

"The documents had already been redacted by the departments to protect personal information and on other grounds. As my office has not been given the opportunity to see the unredacted documents, we are not able to confirm whether those redactions are consistent with the order of the Committee," Dufresne said in his correspondence with David Gagnon, the finance committee clerk.

"The departments made certain redactions to the documents on grounds that were not contemplated in the order of the committee. We note that the House's and its committees' power to order the production of records is absolute and unfettered as it constitutes a constitutional parliamentary privilege that supersedes statutory obligations, such as the exemptions found in the Access to Information Act."

(Provisions of the Access to Information Act are commonly used to justify releasing censored material to journalists and the general public.)

"The House and its committees are the appropriate authority to determine whether any reasons for withholding the documents should be accepted or not," Dufresne added.

The opposition parties have said that the documents that have been released so far call into question Prime Minister Justin Trudeau's claim that he first learned that public servants were recommending that WE Charity administer the grants program ahead of a cabinet meeting on May 8.

Emails released show that senior members of his office — including Rick Theis, the director of policy and cabinet affairs — had meetings with the charity about its proposal to administer the program before that date.

An April 20 email from Michelle Kovacevic, a senior Finance official, said the "PMO was weighing in" on WE's pitch to dole out student support.

That same official called senior members of former finance minister Bill Morneau's staff "besties" with WE Charity administrators in a May 7 email. Members of Morneau's team were working with WE in April on how best to craft the grants program.

Craig Kielburger, the co-founder of WE, later thanked Ben Chin, one of Trudeau's senior advisers, in a June LinkedIn message for his "kindness in helping shape our latest program with the government."

Pierre Poilievre, the Conservative finance critic, said today he believes the government directed bureaucrats to hide key information related to this scandal to shield the prime minister from further scrutiny.

"They deliberately ignored the committee's will in order to cover up the truth and protect Justin Trudeau's reputation," Poilievre said in an interview with CBC. "The law clerk was tasked with combing through all the material and redacting any cabinet confidence or other information that needed to be kept from public view. Instead, the Trudeau government did its own redacting.

"I think the plan, Trudeau's plan, is to try and cover up the facts in this scandal until the fall when he will force an early election, in the hopes that none of this, none of the truth comes to light before Canadians go to the polls. This government, under his direction, is going to such lengths to bury it all until after Canadians vote."

After Morneau's abrupt resignation on August 17, Trudeau prorogued Parliament until the end of September, shutting down the Commons committees studying the WE matter. The prorogation means the committees are powerless to challenge redactions to the WE documents.

The opposition parties will have a chance to vote down the government — and force an election — after a Sept. 23 speech from the throne by Gov. Gen. Julie Payette.

Poilievre said the government should immediately hand over the original documents in question to the law clerk so he can decide what can or cannot be released to parliamentarians.

A senior government official, speaking on background Thursday, conceded both bureaucrats and the law clerk made amendments to the documents delivered to MPs.

But the official said the government released a number of memos to cabinet related to the WE matter — even though the committee explicitly called for the exclusion of such documents — as a show of good faith.

The PMO referred all questions on the matter to the Privy Council Office (PCO), the arm of government that serves the prime minister and cabinet and coordinates the work of the various federal departments.

Pierre-Alain Bujold, spokesperson for the PCO, side-stepped a question about whether the government would hand over the documents — in their original state — for review by the law clerk.

He did not say why bureaucrats assumed responsibility for the redactions, despite the committee's order.

"Every effort was made to release as much information as possible to the committee, and indeed cabinet confidences pertaining to the Canadian Summer Student Grant program were disclosed," Bujold said in a statement.

"A limited amount of information was protected." In fact, more than a quarter of all the documents provided to the finance committee were redacted in whole or in part.