Battle brewing between auditor general and House of Commons over ‘green slush fund’ documents

OTTAWA – A parliamentary battle is brewing between the House of Commons and Auditor General Karen Hogan, who has so far refused to comply with an order demanding she hand over documents relating to her scathing audit of the so-called “green slush fund.”

Parliament’s halls may be sleepy during the quiet summer months, but drama has been building between the House of Commons, the Office of the Auditor General (OAG) and, to a lesser degree, the RCMP over a motion adopted by MPs nearly three months ago.

On June 10, the House of Commons passed a Conservative motion ordering the government and Sustainable Development Technology Canada (SDTC) — rebranded as the “green slush fund” by Conservatives — provide a trove of documents on the troubled fund to the Commons law clerk, Michel Bédard.

The order requires the same of the OAG in addition to “any other document” Hogan used to prepare her audit of SDTC tabled the previous week.

In her report, Hogan concluded that one out of six projects funded by STDC that she audited were ineligible and that the organization had serious governance issues.

The motion, supported by opposition parties but opposed by the governing Liberals, ordered the Commons law clerk to turn over those documents to the RCMP.

“Quite simply, an RCMP investigation is the only way to fully expose all wrongdoing and potential criminality at the SDTC Green Slush Fund. Conservatives look forward to hearing from the RCMP on whether they will pursue these credible allegations,” the Conservatives said at the time.

According to letters tabled over the summer in the House of Commons and its public accounts committee, the order created significant consternation within the OAG and the RCMP.

The letters also reveal that neither the OAG nor the RCMP found evidence of criminal wrongdoing while looking into the SDTC.

On July 10, Hogan wrote House of Commons Clerk Eric Janse to inform him that she would not comply with the order because it could compromise her office’s work. She also noted that if the RCMP wants her files, it can obtain a production order to obtain them legally.

“I am not able to respond to the order at this time,” she wrote to Janse, arguing that the records she audited don’t belong to her office but to the government.

“The requirement to produce my audit file to Mr. Bédard compromises my independence, and is also likely to discourage departments, agencies, and Crown corporations from providing me free and timely access to the information required for my audits going forward.”

She also said that she did not find any potentially criminal activities during her audit of SDTC that warranted notifying the police.

In a statement, OAG spokesperson Sébastien Bois said Monday that the OAG’s position has not changed since the July 10 letter.

Parliamentary privilege grants the House of Commons tremendous power when it comes to fulfilling its duties. In a letter to Speaker Greg Fergus, Bédard said that its “power to send for documents is absolute and unfettered. It is a constitutional parliamentary privilege not limited by statute.”

Hogan’s refusal to hand over the documents to Bédard sets her office up with a potential confrontation with the House of Commons.

In a statement, a spokesperson for the House of Commons Speaker’s office said it will be up to MPs to decide how they want to deal with the auditor general’s refusal when the House resumes sitting in late September.

“If a member believes there was a breach of privilege, the member can raise a question of privilege once the House resumes its sitting,” Mathieu Gravel said in an email.

Conservative Leader Pierre Poilievre’s office did not respond to questions about his party’s next move.

In an interview, Steven Chaplin, the former senior parliamentary counsel for the House of Commons, said the June 10 order is both “completely unprecedented” and a likely abuse of Parliament’s powers.

He said that by demanding the documents with the sole purpose of passing them on to the RCMP, the House of Commons is simply acting as a “mailbox” for the police force, which is not one of its duties.

“I think that the House has really overstepped here, and it raises a number of constitutional issues,” said Chaplin, now a fellow at the Public Law Center of the University of Ottawa.

“It is not a parliamentary or constitutional function of Parliament to help the police,” he added. “This is, in my view, an abuse of process by Parliament and by the House. It is using its processes for purposes which they were never intended for, that are not connected to a (parliamentary) proceeding.”

But even if the OAG were to fork over the documents to the RCMP via Bédard, it’s unlikely the police could use them for an eventual criminal investigation.

RCMP Commissioner Mike Duheme wrote Bédard on July 25 to quietly express his consternation about the June 10 motion and the trove of documents coming his way.

“There is significant risk that the Motion could be interpreted as a circumvention of normal investigative processes and Charter protections,” Duheme warned.

That means it is “highly unlikely” any documents obtained through the Commons’ production order could be used to “support a criminal prosecution or further a criminal investigation,” he added.

“I would 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,” he concluded in his letter.

In the public accounts committee earlier this month, Liberal MP Iqra Khalid worried that the motion jeopardized the independence of both the OAG and the RCMP and accused the Conservatives of creating “chaos.”

“It is… quite alarming that parliamentarians would interfere with the work of independent office holders who are there to provide scrutiny. It is quite troubling, in my point of view,” she said.

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