Not a hostile witness, but maybe a skeptic: Memories of Gomery (III)

Feb. 28, 2005. On this date, Alex Himelfarb is the Clerk of the Privy Council (he held that title under Prime Ministers Chrétien, Martin and Harper) and therefore, one presumes, a busy fellow. But here he is, back at Gomery, to answer some questions raised by his former boss Jean Chrétien’s testimony. The topic at hand is Sheila Fraser’s final audit of the sponsorship scandal, the one that became the basis for Paul Martin’s decision to convene the Gomery inquiry. Himelfarb was being briefed on the audit’s progress. Chrétien has, at this point, already testified that Himelfarb didn’t inform the PM about the details revealed in the briefings. Gomery can’t believe it. Himelfarb has been called back to catch the PM in a lie. Jacques Bernard Roy begins asking about the briefings:

MR. ROY: From the briefing that you were given on August 29th, would you agree that it was the view expressed by
Ms. Fraser and her two officials that vast sums of money had
been dilapidated.
MR. HIMELFARB: Dilapidated?
MR. ROY: Yes.

MR. HIMELFARB: Oh, I don’t — I wouldn’t quote her on
that. I would say that significant sums of money had been spent
without our ability to demonstrate value and that worried her,
MR. ROY: Were you at all stunned by these
MR. HIMELFARB: I am still not stunned that she
generally reproduced the findings of the 2000 audit
, the quick
response team that was tabled in parliament, the Groupaction
audit and what we had uncovered in our own review to reform
these programs. We knew they were very serious problems and
that is why we spent so much energy reforming those programs.
MR. ROY: So the answer to my question is, “No, sir, I was not stunned by her revelations”?
MR. HIMELFARB: That is right.
MR. ROY: And if I were to use a milder term, “Were
you surprised”, you would answer also in the negative, I take
MR. HIMELFARB: I was surprised when we received, and
I had been briefed on the actual chapter in writing on the
sponsorship report, and the way that the transactions were
depicted and some of the nature of the transactions that we
hadn’t anticipated.

This is simply inconvenient. The frame for the decision to convene Gomery is the assertion that Fraser’s last audit contained explosive new revelations. In my book I interview a senior advisor to Ralph Goodale, who was Chrétien’s last minister responsible for the sponsorship file — the cleanup guy, essentially — who argues that there was nothing in Fraser’s final audit that had not, in its broad outlines, been public knowledge for many months at that point. Himelfarb’s testimony is along the same lines, and he argues further that substantial reforms had already been implemented to (very, very belatedly) clean the program up before Fraser’s final audit. Jacques Roy, undaunted, keeps trying:

…MR. ROY: Do you remember after she gave you the briefing on the advertising activities, putting your head on the
table and saying “I did not think that there had been a problem
on the advertising side”?
MR. HIMELFARB: No, I don’t remember.
MR. ROY: You don’t remember that. Okay.
MR. HIMELFARB: I can imagine putting my head on the
table thinking, boy, I wish you would recognize how much work we
had done to fix these problems.

MR. ROY: Had you had any inkling, and I think you have —
THE COMMISSIONER: I am sorry. Now I am not sure.
Did you put your head on the table or not?
MR. HIMELFARB: I have no recollection. I really
don’t know.
THE COMMISSIONER: So you don’t remember?
MR. HIMELFARB: Although I can see myself doing that.
MR. ROY: But for different reasons I take it, not
because you were surprised?
MR. HIMELFARB: It could have been fatigue.
MR. ROY: Pardon?
MR. HIMELFARB: I don’t remember.
MR. ROY: It could have been fatigue; did you say?
THE COMMISSIONER: You are not thinking of putting
your head down now are you?
MR. HIMELFARB: The one thing I can imagine is, one of
the officials, I think, said, on advertising, that every rule
had been broken, and I think, in my heart, I had hoped that one
rule had not been.

If you’re not familiar with the former Clerk’s speaking style, that last bit is sarcasm. (Full disclosure: Today I serve on the Advisory Committee of the Glendon School of Public Affairs, whose chairman is Alex Himelfarb, and I consider him a friend.)

On to the crux of the matter. Is it possible that the Clerk could be briefed on an audit in progress and not tell the Prime Minister? I have very substantially condensed the exchange that ensues, which goes on for page after page of transcript:

…MR. ROY: Did you inform the Prime Minister about the
draft report that had been sent to you on October 6 and which
you read sometime in October which dealt at greater length and
more extensively with the matters that had been uncovered by the
Auditor General in the course of her audit?
Let me be clear that for two years we talked about
these issues at length, not as part of what was in the audit,
but as part of the reform, as part of our concern. We also
talked about almost all of these issues as they were raised in
the House or in the media because it was important that he be
able to respond.
But the policy was — just, if I may, Commissioner,
I’ve thought a lot about why, in fact, we didn’t have these
longer discussions about it. The policy was clear and we’ve
done research and we can provide it. In fact, I have it here.
From the beginning of the mandate of the former Prime
Minister, the policy was to brief the Prime Minister on an audit
only within a week of its tabling.
That was true of every audit before and since.
The only briefing he would get was a week or less,
sometimes four days, before the tabling. The reasoning was as
If you look at the sentences in the transmission
documents from the Auditor General, they talk about — perhaps I
could read it into the record. The draft for departmental
comment is labelled “Not to be copied”, “Draft Document”, “For
the purposes only of fact verification” or “For fact
verification and comment only”, “Property of the office of the
Auditor General of Canada”, “Protected A”
. This establishes its
status as office of the Auditor General working paper:
“Until the Auditor General’s report is tabled in
the House, please treat the draft chapter with
the appropriate discretion. If you require
additional copies …”
et cetera.
The Prime Minister’s view was in drafts of audit he
should not be seen or in any other way actually interfere or be
seen to interfere with the evolution of the audit.

This gets a little delicate, because the PM is facing constant questions in the Commons on sponsorship. The Clerk briefs the PM on sponsorship without telling him about the latest in a long series of audits:

…MR. HIMELFARB: I would have briefed him on the corrective action that we were taking in various areas that I expected him to be asked questions in Question Period.
THE COMMISSIONER: You were expecting him to be asked
questions where? In the House?
THE COMMISSIONER: What kind of questions?
MR. HIMELFARB: There was media article saying there
are serious problems of “x” sort.
In fact, I believe —
THE COMMISSIONER: But weren’t those — weren’t those
questions based upon the forthcoming Auditor General’s report?
Speculation about it?
THE COMMISSIONER: And you didn’t think to say to him:
Well, I know a little bit about what that report is going to
MR. HIMELFARB: His preference was not to be briefed
on the contents of the audit.

I have spared you much back-and-forth on the no-briefing policy. Himelfarb explains that draft audits are works in evolution and they should be permitted to evolve, without interference from the top. He says this again and again and again. Sadly he is testifying before a slow learner:

… THE COMMISSIONER: But you’ve talked about the tone of
the report. You used that expression.
You knew that the tone was — to use Mr. Roy’s word —
dramatic. Didn’t that induce you to give some sort of a heads
up to the Prime Minister?
MR. HIMELFARB: Well, just — even from one of the
articles that was leaked where — I think it talks about
explosives —
MR. ROY: Yes, we’ll get to that, in a second.
MR. HIMELFARB: — I believe that we talked about
tone in that context what the expectation is but, just to be
clear, the policy practice was not to brief on the contents of
an audit and it was adhered to.

THE COMMISSIONER: There’s sort of a conspiracy of
silence; is there?
Between the two of you?
THE COMMISSIONER: You don’t tell him what you know
about the contents of the report and he doesn’t ask you?
THE COMMISSIONER: I mean, this is sort of hard for me
to follow.