As discussed in my earlier “Sustainable Concerns” post, the House of Commons, under its broad constitutional authority to call for documents, on June 10, 2024 ordered an extensive production of documents related to the operations of Sustainable Development Technologies Canada (SDTC) thereupon to be delivered to the RCMP.
The adoption of this motion spurred proactive action by the RCMP, as documented in the following mail conversation between RCMP Commissioner Duheme and Parliamentary Law Clerk Bédard:
“Subsequent to the Motion, the RCMP undertook a review and examination of the Office of the Auditor General of Canada (OAG) tabled report on SDTC, along with additional administrative reports by Innovation, Science and Economic Development Canada and publicly available information.
“The RCMP has concluded that the available reports do not identify any criminal offences or evidence of criminal wrongdoing at this time, whether in relation to any specific individual or organization.”
Note that the above conclusion is based on publicly available information NOT upon documents produced by the Motion. The following proposition, however, reflects what might be done, or not, based on documents produced by the Motion:
“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 exists could be be used to support a criminal prosecution or further a criminal investigation.“
“The RCMP will continue its review of available information that does not give rise to concerns under the Charter to determine if sufficient evidense exists to launch as criminal investigation. I woud like to emphasize as well that the RCMP is operationally independent and strictly adheres to the principle of police independence. In a free and democratic society, this ensures that the government cannot direct or influence the actions of law enforcement ant that law enforcement decisions remain based on the information and evidence available to police.”
So, to paraphrase the RCMP Commissioner: “Hey, fill yer boots! Send whatever documents you want, but we can’t even look at them!” Or, in other words: “We don’t need them, we can’t use them, and we don’t want them.”
“The order requires that I, as Law Clerk and Parliamentary Counsel, provide forthwith the documents I received pursuant to it, to the RCMP.
“The nature of the documents I received require that proper arrangements be made for their delivery to the RCMP. My understanding from the issues raised in your letter is that the RCMP does not wish to make such arrangements.”
“Essentially, a Parliamentary production order does not set aside the legal requirements and standards that the RCMP must comply with when collecting or accessing information and documents potentially attracting Canadian Charter of Rights and Freedoms protection in order to preserve the viable reliance on this information and documents in any potential criminal investigation or prosecution.
” In my letter, I also sought to underline the need, prior to the submission of documents, for the House of Commons to ensure that practices have been put in place to identify the nature and the source of any information, with a view to determining whether it contains Charter-protected information.”
Or, in other words, again: “We don’t need them, we can’t use them, and we don’t want them.”
“As stated in the order, my role is limited to receiving the documents produced by the government, Sustainable Development Technology Canada (SDTC) and the Auditor General of Canada, and to provide them forthwith to the Royal Canadian Mounted Police. My role does not include any assessment of the documents, including their nature and source.”
“In my letters of July 25 and August 6, 2024, I outlined the RCMP’s position and concerns around the legal risks associated with providing all of these documents to the RCMP, emphasizing the legal requirements and standards that the RCMP must comply with when collecting or assessing information and documents potentially attracting Canadian Charter of Rights and Freedoms protection in order to preserve the viability of reliance on these documents in any potential criminal investigation or prosecution.”
Or, in other words, yet again: “We don’t need them, we can’t use them, and we don’t want them.”
It should be stressed that the RCMP, upon examining relevant sources that would not jeapardize potential prosecutions, concluded that there is no evidence of criminal conduct in this matter.
Commissioner Duheme further stresses in his July 25 letter that the Office of the Auditor General (OAG), which itself has a broad ability to call for documents, also has the ability and the responsibility to refer matters that it views as potentially criminal directly to the RCMP. While intimately familiar with these matters, it has not done so.
It is certainly clear here, as well, that if the RCMP uses or even views information obtained under the expansive power of the House to call for documents, it would very likely compromise Charter Rights of defendants to a fair trial. So, rather than ensure that criminality be properly held to account, it would more likely conflict with or prevent our ability actually to do so — should evidence of criminality eventually arise.
In the event that evidence from credible and valid sources does later come to light, however, such that the RCMP or perhaps Crown Prosecutors might decide to undertake a criminal investigation, they have ample supoena powers or other lawful means such as court orders and search warrants to obtain further evidence in such a way as will not prejudice nor contaminate the outcome.
Conclusion
Holding people and organizations to account for criminal activity is arguably the whole point of the June 10, 2024, House Order, for there is no other reason to involve the RCMP. As we have seen, however, the RCMP cannot use nor do they want documents obtained in this way — hence there is no remaining value nor purpose to the Order itself.
I have no dispute with the findings of fiscal managment problems and evident failures by SDTC to abide by the terms of the financial agreements with the government. This certainly to me bespeaks incompetence or carelessness at some level in the organization, and may require civil remedies, but, as noted, there is no basis at this point to pursue criminal action.
The concern by Opposition parties to hold the government to account for alleged breaches and mismanagement is valid and fair, and certainly within their legitimate purview. Nevertheless, to so zealously presume criminality without evidence, and to launch such an exhaustive and unrestrained order for production of documents is an abuse of the power of the House, and is blatently irresponsible.
