3. Letter to Committee
Department of Justice Canada
Deputy Minister of Justice and Deputy Attorney General of Canada
Ottawa, Canada
K1A 0H8
Aug 12, 2022
The Honourable Jim Carr, P.C., O.M., M.P.
Standing Committee on Public Safety and National Security
131 Queen Street, Floor 6
House of Commons
Ottawa ON K1A 0A6
Dear Mr. Carr:
I am writing to provide background information to assist the House of Commons Standing Committee on Public Safety and National Security (“SECU”) in advance of my appearance on behalf of the Department of Justice Canada on August 16, 2022.
First, I want to acknowledge the devastating loss and impact for the families, loved ones and communities of the victims of the April 2020 Nova Scotia mass casualty incident. The Government of Canada is committed to fully supporting the Mass Casualty Commission Inquiry (“MCC Inquiry”) in its important work. The Department of Justice Canada represents the Government of Canada in the MCC Inquiry.
One of the responsibilities of Department of Justice lawyers and paralegals is to collect Government of Canada documents, review them for relevance to the MCC Inquiry and for legally privileged information, and produce them to the MCC. This letter aims to provide background information on the document production process. It also specifically addresses what happened with respect to the 35 pages of RCMP senior officers’ notes which required further review before they were disclosed to the MCC.
While I write and will appear before SECU on behalf of the Minister of Justice and Attorney General of Canada, I want to be clear that the Minister and his office have not been involved in any way in the review or production of documents to the MCC. That work is led by counsel and paralegals in the Atlantic Regional Office of the Department of Justice.
I. JUS’s Role in the MCC Document Production Process
a) MCC Framework for Document Production
To conduct the MCC Inquiry, the MCC has required participants, including the Government of Canada, to provide it with relevant documents. The process of collecting and disclosing documents is known as “document production”. Document production in the MCC Inquiry is similar to the process in other public inquiries or in civil litigation generally. A party must disclose documents in their possession that are relevant to the proceedings and not legally privileged. The Government of Canada’s document production to the MCC Inquiry began in February 2021 and has occurred on an ongoing basis as the proceedings progressed.
Rules 15-19 of the MCC’s Rules of Practice and Procedure set out the rules governing document production. In addition, the MCC and Government of Canada reached an agreement on March 17, 2021, to deal with situations where a document over which privilege should have been claimed was inadvertently disclosed. This allows the Government of Canada to recover the document to protect the privileged information, and the MCC agreed that such an inadvertent disclosure would not constitute a waiver of privilege.
To date, the MCC has issued 39 subpoenas for documents to various entities within the federal government. In general, subpoenas describe documents or categories of documents that must be produced. They also facilitate tracking the production of large volumes of documents. The Government of Canada began proactively producing documents to the MCC on February 26, 2021, before any subpoenas were issued.
b) Canada’s Document Collection and Review Process
The Government of Canada’s document production process for the MCC Inquiry is run by lawyers and paralegals in the Department of Justice. It is a technical, labour intensive process.
Document collection for anticipated disclosure to the MCC began around November 2020, and has been ongoing since then. Over 75,000 documents have been disclosed to the MCC to date. Document production is happening as a rolling process and it is ongoing. Documents are prioritized for review and production based on the priorities identified by counsel for the MCC and immediate needs for upcoming public hearings.
The Government of Canada’s document disclosure to the MCC involves numerous government departments and agencies, including the RCMP, the Public Safety Canada, the Canada Border Services Agency, the Department of National Defence, Transport Canada, the Correctional Service of Canada, and Public Services and Procurement Canada.
Documents were collected from each department or entity and were transmitted to the Department of Justice either by electronic file transfer services or on USBs or hard drives. Electronic documents were then imported into the Department of Justice document management program.
The next step is to have documents reviewed, categorized, and annotated by lawyers and paralegals. Each document must be assessed with respect to relevance and privilege. This is a painstaking and time-consuming process. Some documents, such as handwritten notes, take longer to review because they cannot be machine-read in any way and require a person to directly review the handwritten document. Determinations of relevance and privilege are made by Justice lawyers and paralegals, in consultation with relevant departments and agencies, as required. The Minister of Justice and the Minister’s Office are not involved in these decisions.
In order to assess relevance, each reviewer studies the MCC’s mandate as set out in the Order in Council that created the Inquiry and the terms of any applicable subpoena. Privilege review identifies information that is legally protected from disclosure according to common law and legislation. Privilege may attach to all or part of a document. Common privileges include solicitor-client privilege and litigation privilege. Statutory privileges include those under the Canada Evidence Act, such as public interest privilege, information potentially injurious to national security, and Cabinet confidences. Two examples of public interest privilege are information that could jeopardize an ongoing investigation or police officer safety. When privileged information is identified during the review of documents, redactions are applied to the document in the electronic system, and a note is made as to what type of privilege applies.
Some privilege claims are more obvious, such as solicitor-client privilege where a document contains legal advice from a lawyer to their client. Other privileges are less obvious and require consultation with clients or counsel who are subject-matter experts to assess whether the information is privileged.
When documents have been identified as relevant and are not privileged, or only partially privileged, they are prepared for production to the MCC according to transfer protocols agreed to with the MCC. Any privileged information is redacted. Some personal information or irrelevant information may also be redacted. Documents are processed in the Department of Justice’s document management system into a format that is compatible for import to the MCC’s system. This document package is quality controlled, then sent to the MCC’s document manager either by file transfer application, or on a hard drive to be physically delivered.
The Department of Justice’s understanding is that when the MCC receives documentary disclosure from Participants, the MCC imports the documents into its electronic system for review. The MCC may also add redactions to documents, for example to protect personal information, or when information is graphic, sensitive or irrelevant to its mandate. These redactions made by the MCC can be important to its trauma-informed approach, which aims to minimize the potential for further harm and re-traumatization, and to enhance safety, control and resilience.
The MCC then discloses documents to all Participants in batches through its electronic document management system. Documents circulated to Participants by the MCC are subject to an undertaking of confidentiality, which means that they can only be used for the purposes of the MCC Inquiry, and not further disclosed. Documents are usually made public when they are made an exhibit at an MCC hearing, placed on the record during a witness interview, or if they are referenced in one of the Foundational Documents prepared by the MCC, which summarize evidence on particular issues in the Inquiry. When documents are made public in the MCC Inquiry, the documents may still contain redactions applied by Participants or by the MCC.
When MCC counsel have raised questions about information redacted by the Government of Canada, Justice counsel and MCC counsel have engaged in discussions with a view to reaching agreement on the information to be redacted. In some cases, the MCC has asked Justice counsel to re-review documents to confirm that redactions are justified. Justice counsel have done so and where appropriate have re-disclosed documents with adjustments made to the redactions. In some situations, Commission counsel has also inspected unredacted material, and the parties have come to mutual agreement on redactions.
II. 35 Pages of Senior Officer Notes Retained for Further Privilege Review
In January and February 2022, in the course of document production, Justice lawyers and paralegals were reviewing the handwritten notes of certain RCMP H Division senior officers for disclosure to the MCC. During this review, Justice counsel and paralegals flagged some content within 35 pages of four sets of notes for potential legal privileges requiring further review. The notes were those of C/Supt. Chris Leather, C/Supt. Janis Gray, Supt. Darren Campbell, and Insp. Murray Marcichiw.
At that time, the MCC was seeking the disclosure of multiple priority sets of documents including senior officers’ notes. Justice counsel authorized the four sets of notes totalling 2,414 pages to be disclosed to the MCC on February 11, 2022, and March 2, 2022, with the 35 pages retained for further review at that time.
Through inadvertence, Justice counsel did not alert the MCC to the fact that 35 pages were retained from the produced documents pending privilege review. The intent of Justice counsel was to re-disclose the complete documents with the 35 pages included, after the further review for legal privilege was complete. Documents for the MCC had previously been recovered and replaced with new versions, for example, when MCC counsel asked Justice counsel to re-review documents to confirm that redactions were justified. It had also occurred on occasions when necessary redactions had been missed, in accordance with the protocol dealing with inadvertent disclosures of privileged information, described above.
Justice counsel made the decision to retain these pages for further privilege review. The Minister of Justice and Minister’s Office had no awareness or involvement in that decision.
The Department of Justice completed the review of the 35 pages, and they have now all been disclosed to the MCC. Specifically, on May 30, 2022, 13 pages from Supt. Campbell’s notes and two pages of Insp. Murray Marcichiw’s notes were disclosed; on June 24, 2022, 17 pages from the notes of C/Supt. Chris Leather were disclosed; and on July 22, 2022, three pages from the notes of C/Supt. Janis Gray were disclosed.
Of the 35 pages originally retained for further review, only four (in the notes of Supt. Campbell) referred to the April 28, 2020, meeting with the Commissioner that is a focus of this Committee’s study. No redactions were applied to those notes of the April 28, 2020, meeting when they were disclosed to the MCC on May 30, 2022.
The remainder of the 35 pages retained for further review do not relate to the April 28, 2020, meeting. These pages contain some redactions for irrelevant information (for example, shift end times, notes on other unrelated RCMP investigations, non-relevant administrative tasks); personal information (such as off-duty sick status, contact information, personal health information, of the individual or of employees); and legally privileged information (section 37 of the Canada Evidence Act, solicitor-client privilege). None of the redacted information in the 35 pages is about the April 28, 2020, meeting.
The Department of Justice recognizes that not advising the MCC immediately that the 35 pages were retained for further review was an error, and regrets this oversight. MCC counsel and Justice counsel discussed this situation. Justice counsel explained how the oversight occurred, and provided a full accounting of the 35 pages. Justice counsel has also engaged in extensive discussions with MCC counsel regarding the Government of Canada’s document production processes to ensure that they are transparent and fully support the work of the MCC.
III. Conclusion
The Department of Justice is committed to supporting the work of the MCC Inquiry. Department of Justice lawyers and paralegals have worked and are working diligently to ensure comprehensive and timely document production, and continue to do so. I have full confidence in the professionalism of the Department’s counsel and paralegals representing the Government of Canada at the MCC inquiry.
I trust that this information will be of assistance to the Committee.
Sincerely,
A. François Daigle (he/him)
Deputy Minister of Justice and
Deputy Attorney General of Canada
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