In a letter sent yesterday afternoon, Thomas Mulcair has formally requested that Jean-Denis Frechette, the Parliamentary Budget Officer, return to court to settle the dispute over what information the government should have to release about budget cuts. This even though Mr. Frechette would seem to prefer to explore parliamentary remedies first.
The first request by Mr. Mulcair for an analysis of the cuts outlined in the 2012 budget was made in November 2012, after the PBO’s own attempt, first initiated in April 2012, was stymied. Mr. Page then took Mr. Mulcair’s request to the federal court for clarification. And while the federal court dismissed Kevin Page’s appeal on technical grounds this past April, the ruling was greeted by Mr. Mulcair and Mr. Page as evidence that the PBO could seek recourse through the courts if it was denied information.
Mr. Page’s interim replacement, Sonia L’Heureux, then picked up the pursuit, but as of June the PBO had still not received all of the information it had requested from government departments. In July, officials at the PBO decided to begin filing access to information requests in hopes that would result in the release of the relevant information.
So on Mr. Frechette’s first day as PBO two weeks ago, he received a letter from Mr. Mulcair, the NDP leader seeking an update on the situation. When Mr. Frechette wrote back that “apparent avenues” had been “exhausted,” Mr. Mulcair wrote to remind Mr. Frechette that the matter might be taken to court.
But in a letter to Mr. Mulcair this past Monday, Mr. Frechette referred to the previous ruling to explain why he wishes to take other steps before pursuing the matter in court.
As you will be aware, Mr. Page then referred the matter to the Federal Court for a determination. In his decision, Mr. Justice Harrington said:
“[The PBO] has a number of remedies, such as complaining to the Chief Librarian, perhaps complaining to the two Speakers and the Joint Committee, and perhaps to Parliament as a whole. What I am saying is that in addition to such remedies, ultimately he would have recourse to this Court. There may or may not be a sequence to these alternative remedies, and the Court, in its discretion, may refuse to hear an application if other adequate alternative remedies have not been exhausted.”
Keeping with this advice, the Parliamentary Librarian and then interim PBO, Sonia L’Heureux, informed the Speaker of the Senate and Speaker of the House of Commons, who instructed her to send additional letters to the non-compliant departments.
The upshot of these efforts saw some successes: several additional departments provided some data. To the extent that analysis is possible on the basis of this partial data, it has been undertaken and published.
I intend to follow through with the remained of Mr. Justice Harrington’s advice when Parliament resumes by ensuring that the Speakers are informed and exploring alternative remedies.
While pursuing this matter in court always remains an option, it involves significant risks beyond those articulated by Mr. Justice Harrington above.
If the PBO were to seek judicial review of a Deputy Head’s decision not to provide the data, the Attorney General would likely argue that the matter is not justiciable. If his argument is sustained, the application would be dismissed without a decision on entitlement to the data. Even if the application were not dismissed, it is not clear that the court’s interpretation would confirm that the PBO is entitled to the data. And, even if it does, the Attorney General may appeal the decision to the Federal Court of Appeal, at the very least, on the justiciability point. And, if the PBO succeeds in the Federal Court of Appeal, the likelihood remains that the Attorney General will seek leave to appeal to the Supreme Court.
Given the foregoing, I prefer to exhaust parliamentary remedies.
Yesterday afternoon, Mr. Mulcair sent a response to the PBO. In that response, Mr. Mulcair refers Mr. Frechette to different portions of Justice Harrington’s ruling and argues that this dispute is not for the Speakers or Parliament to deal with. And he wants Mr. Frechette to take the matter back to court.
One of your legally mandated roles, as Parliamentary Budget Officer, is to provide independent analysis to help Members of Parliament. In requesting this analysis, I exercised my right under statute as an MP to this financial information. I believe you are misinterpreting my request as something that can be dealt with, and potentially quashed, by the speakers or by parliament as a whole. This is the “mischief” cited above, and Justice Harrington makes it clear that parliament cannot take away my right to this information after it was passed into law, except through passing a new law…
You now seem to believe it is acceptable to allow the Act to be ignored without doing anything to protect the rights of MPs, as laid out by Justice Harrington. I believe it is inappropriate for you to decide that this section of the Act is no longer to be in force or be observed.
I am formally requesting you take this matter back to the Federal Court to defend both your right to this information, and my right to this analysis. This request – an analysis of how Conservative budget cuts will affect Canadians – is too important for us to abandon it.