Friday, February 14, 2014

Is "lawyering up" at taxpayers' expense an option for Senators?

Good Day Readers:

The following partial information is from the Auditor General of Canada's website. Notice the third point part of which CyberSmokeBlog has highlighted. While CSB is not a Philadelphia lawyer, does it not read to you as though under The Auditor General's Act the Office of the Auditor General does indeed have the power to waive solicitor-client privilege subject to the important proviso such information so acquired must remain confidential and, therefore, is not public domain. Rather, it can be used to aid the AG in his investigation.

The excellent Dawna Friesen-Jacques Bourbeau Global News video (below) toward the end seems to suggest/imply there is very little Michael Ferguson can do to those Senators who refuse to waive solicitor-client privilege save to proceed without their co-operation. But is that necessarily true?

Could the OAG not petition the Federal Court of Canada to force said Senators to comply? All he'd have to do is win one challenge and a precedent would be established for the others. In the alternative, perhaps a class action lawsuit could be launched. Would a terse letter from Mr. Ferguson to each holdout advising them of such be all it would take to force compliance?
  • OAG auditors are entitled to receive all information that they determine is relevant and necessary to enable them to carry out their audits and examinations. Auditors require documents, reports, and explanations from members of the public service and from officers, employees, or agents. Such information may be provided in electronic (preferable) or hard-copy format, as appropriate and applicable in the circumstances.
  • The fact that a document is not accessible to the public, through an access to information request, is not a valid reason for denying access to the Auditor General’s staff. The provisions of the Access to Information Act do not apply to the Auditor General’s access to information for audit purposes.
  • OAG auditors are entitled to access documents that may be subject to solicitor/client and other privileges. To ensure that this access does not affect the privilege attaching to the documents, the OAG makes a formal written request for access to such documents, pursuant to the Auditor General Act (the “solicitor/client privilege letter”) and undertakes to respect the confidentiality of the information. An appropriate senior management official of the entity responds in writing that the entity will comply with its duty under the Act and that provision of the documents to the OAG will not constitute a waiver of any privilege attached to the documents.
  • Memoranda to Cabinet or records of Cabinet decisions and Treasury Board submissions or decisions are made available to the Auditor General through a separate process that involves the Privy Council Office or the Treasury Board of Canada Secretariat, as appropriate.

    An audited entity is responsible for, upon request, identifying to OAG auditors the memoranda to Cabinet, Cabinet decisions, and Treasury Board submissions, and decisions that relate to the audit, so the auditors may request them directly from the Privy Council Office or from the Secretariat. The Auditor General’s access to these types of Cabinet confidences is set out in two orders-in-council: PC#1985-3783 and PC#2006-1289. OAG auditors can obtain all other documents not of this type directly from the entity.
  • As the OAG auditors identify the information they need and who they need to interview, the audited entity is to give them access. The information that the audited entity should supply, upon request, includes all forms of communication—written, visual, auditory, and electronic—whether they be in final or draft form, with the exception of draft Treasury Board submission material. This includes but is not limited to any relevant correspondence, memorandum, book, report, plan, map, drawing, diagram, analysis, survey, pictorial or graphic work, photograph, film, microfilm, sound recording, video tape, or machine readable record. Auditors may take extracts and make photocopies of the information, unless its security classification dictates otherwise.
  • Guidance for deputy ministers, on the Privy Council Office website, emphasizes that the deputy head’s role includes ensuring that their departments establish a respectful and constructive working relationship with bodies such as the OAG, and that the audited entities supply the information those bodies need to fulfill their legislative mandates.
  • It is important that, when the audit team identifies entity staff for an interview, the staff be made available. It is not an acceptable practice for the entity to inappropriately coach staff prior to an interview or filter information requested by the OAG. As a general rule, only the entity staff members who are being interviewed should be present during the interview in order to encourage candour and completeness in their responses. Under certain circumstances, the audit team and the audited entity may agree that it is appropriate to have observers present at an interview
Has a Senator(s) previously been legally challenged in this way? CyberSmokeBlog hasn't done the homework but given the uniqueness of the situation its educated guess is "no." Perhaps it's long overdue.

Clare L. Pieuk
Some senators not fully cooperating with auditor general

By Amy Minsky and Jacques Bourbeau
Thursday, February 13, 2014

Above: Many senators are not fully cooperating with the auditor general’s investigation of how they’ve spent taxpayers’ money. Jacques Bourbeau reports.
Several senators are refusing to sign a letter promising to fully cooperate with the auditor general in his unprecedented audit of each member of the upper chamber, Global News has learned.

Liberal Senator Joseph Day said he believes the letter needs some adjustments before sending it back.

“I have to know why the auditor general needs the letter,” he said in an interview this week. “When you get a two-or three-page letter and say, ‘please sign it,’ if you’re doing your due diligence, you try to understand why it’s necessary.”

In November, Auditor General Michael Ferguson’s office sent each sitting senator a series of documents outlining how the audit team would tackle the sweeping review of their spending.

Those documents included a letter, written in the voice of a senator, agreeing to give the auditor general access to a slew of documents including those held by third parties and any to which solicitor-client privilege, or any other privilege, is attached.

Each senator was asked to return that letter, transcribed on their letterhead and signed, indicating their intention to comply with the audit process.


Timeline: Key dates in the evolution of the Senate expense-claim controversy

Three months later, the auditors are still waiting to receive full compliance from some.

Liberal Senator Terry Mercer, for example, said he returned the letter but is rejecting one aspect.

“No Canadian would expect anybody to waive solicitor-client privilege, and I’m not going to,” he said.

Mercer, from Nova Scotia, is regularly listed as one of the senators who racks up the most in travel expenses.

Another senator, who did not want to be identified, said one of his colleagues told the auditor general they would “only respond to questions in writing.”
“No Canadian would expect anybody to waive solicitor-client privilege, and I’m not going to.”
- Liberal Senator Terry Mercer
That senator did not respond to an email asking to confirm or deny the claim.

Government leader in the Senate Claude Carignan said he returned the letter unchanged, but added he understands if some of his peers haven’t yet.


RCMP formally charge Brazeau, Harb with fraud, breach of trust over Senate expenses

“In the letter they ask a couple of [questions] about professional secrets, so I understand that some senators want to have more information … they need to have a couple of days of reflection,” he said.

The letter from Ferguson’s office was dated November 12.

Carignan said the slow response from some senators does not raise any concerns for him.

“Everything will be OK,” he said. “I don’t expect any problems.”

Global News reached out to all 93 sitting senators over the past week, asking whether they had signed and returned the letter from Ferguson’s office.
“They need to have a couple of days of reflection.”
- Government leader in the Senate Claude Carignan
Twenty-four said they signed and returned the letter without any revisions; four either said they sent a signed letter to the auditor general but wouldn’t divulge its contents, or admitted to changing parts of the letter; 18 deferred the question to the auditor general or said they have not sent any correspondence back; 48 senators did not respond.

Ten of the 14 Conservative senators who deferred the question to Ferguson’s office did so through near-identical form letters.

“Thank you for your enquiry,” emails from several senators read. “The audit of the Senate is being conducted by Mr. Ferguson, the Auditor General of Canada. Any questions you may have concerning his audit should be directed to Mr. Ferguson or his office.”

Carignan said he did not instruct any of his caucus colleagues to respond a certain way.


Suspended senators targeted in federal budget

The auditor general’s office acknowledged not all senators have signed and returned the letters.

“We will not speculate on the consequences, as we are in the process of following-up with the senators who have not yet answered,” a spokesman from the office wrote. “We expect senators to provide the information we need to do the audit.”

A source familiar with the workings of the auditor general’s office told Global News any refusal to sign the letter will not lead to a cancellation of the audit.

Without a senator’s full cooperation, the auditing team may not be able to explore every nook and cranny of their spending habits.

If the auditor general’s office does hit any such road blocks, it would likely come out in a report, the source said.

Similar letters are routinely sent to government departments subject to an audit, though the relationship and protocol between federal departments and the auditor general has been developed over years.

Members of the Senate’s internal economy committee voted last June to invite Ferguson’s office to audit senators’ expenses. The call came as the upper chamber was awash in controversy, after Senators Mac Harb, Patrick Brazeau, Mike Duffy and Pamela Wallin had their living, housing and travel expenses subject to an independent audit.

Following the independent reviews, the Senate ordered the four senators repay hundreds of thousands of dollars in wrongly collected expenses.

Late last year, Senators Wallin, Duffy and Brazeau were suspended from the upper chamber, retaining little but their titles; they each lost their paycheques, office resources and some benefits at least until the end of the Parliamentary session, scheduled to end in the fall of 2015.

Harb resigned from the Senate in August, not long before Conservative leadership in the upper chamber moved to suspend his colleagues.

Below is a transcription of the letter Ferguson’s office sent to each senator and asked be returned and signed.

I, as a Senator, for the Senate of Canada will comply with any request that you or your staff make for access to relevant documents that relate to my position as a Senator and to the audit objectives determining whether my expenses and other transactions were incurred for Parliamentary business with due regard for the use of public funds under my control, including documents to which solicitor-client privilege or any other privilege is attached.

I will also provide any necessary authorization for you to obtain access to relevant information held by third parties.

Access to requested documents will normally be provided within five working days.

Disclosure of such documents will be made as recognized under the Auditor General Act and will not constitute waiver or any privilege attached to disclosed documents.

I confirm that all information discussed or shared during the audit with me and my staff will be kept confidential until after the audit is completed.

I understand that I am permitted to discuss matters related to the audit with the Standing Committee on Internal Economy Budgets and Administration or its audit sub-committee.

I also accept responsibility for maintaining the confidentiality of protected and controlled documents provided to me for review and for returning them after the completion of the audit.

Finally, I have reviewed the Audit Plan Summary. I acknowledge responsibility as set out in the Audit Plan Summary under the section “responsibility,” and agree that the criteria set out in the documents are suitable as the basis for assessing whether the audit objective has been met.  


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