Episode #6: Brad Trivers on Deleted Records & Breaking the Audit Act
Recall there are three types of legal claims in CMT’s lawsuit: (1) Spoliation (2) Misfeasance in Public Office and (3) Breach of Contract. My intention with this series is to divide up the episodes as equally as possible.
Given that the attempt is being made to tie all of the episodes in this series to one of these three claims. it might be useful to offer a concise “legal definition” for each of these types of claims:
Spoliation: refers to the destruction or material alteration of evidence, or potentially the failure to preserve property for another’s use as evidence in litigation that is pending or reasonably foreseeable. Accidental destruction or inadvertent loss of evidence is not spoliation. Spoliation will only be found where the following occur:
- evidence has been destroyed;
- the evidence destroyed was relevant to an issue in the lawsuit;
- legal proceedings were pending, and
- the destruction of the evidence was an intentional act indicative of fraud or an intention to suppress the truth.
Misfeasance in Public Office: is a tort remedy for harm caused by acts or omissions that amounted to:
1. abuse of public power or authority;
2. by a public officer;
3. who either
a. knew that he or she was abusing their public power or authority, or
b. was recklessly indifferent as to the limits to or restraints upon their
public power or authority; and who acted or omitted to act: (i) with either the intention of harming the claimant (so-called “targeted malice”), or [ii] with the knowledge of the probability of harming the claimant, or [iii] with a conscious and reckless indifference to the probability of harming the claimant.
Breach of Contract
The elements that must exist to establish a legal claim of breach of contract are generally the following:
- The existence of an enforceable contract;
- Knowledge on the part of the defendant of the existence of the plaintiff’s contract;
- An intention on the part of the defendant to cause a breach of that contract;
- Wrongful interference on the part of the defendant; and
- Resulting damage
The three main spokespersons on the E-gaming & Financial Transactions Platform (CMT/FMT) issues for the PC Caucus when in Opposition were (in current positions):
- Minister of Transportation, Infrastructure and Energy, Hon. Steven Myers,
- Minister of Health and Wellness, Hon. James Aylward, and
- Minister of Fisheries and Communities, Hon. Jamie Fox.
Most of the video clips in the subsequent episodes will be from these three individuals.
All the PC MLAs got a good kick at the “spoliation” Claim in the Legislative Assembly since that’s the issue that grabbed the most media and public attention. There are important insights to be had from this exchange between PC MLA Brad Trivers and the Premier presented in this episode.
Deleted Government Records: The Early Days
This Question Period exchange between Trivers and MacLauchlan took place on November 15, 2016. The Auditor General, Jane MacAdam, had made her egaming report public a little over a month earlier, on October 5, 2016. November 15th was also the first day of the Fall sitting of the Legislative Assembly.
With a month to prepare, the PC Official Opposition unloaded all barrels on the MacLauchlan Government, asking ONLY egaming questions for the first couple of days – all of which were taken from the AG’s report.
It’s important to understand that in those very “early days” after the AG report went public the responses Premier MacLauchlan was giving to questions about deleted government records were markedly different from what Doug Currie (and subsequently MacLauchlan as well) gave to explain the deleted records in early December 2016 saying everything went by normal “standard procedure.”
In the early days – having spent perhaps years locked away in Archives, by his own admission – Premier Maclachlan seemed totally agreeable to accept that the deletion of records was something that definitely should not have happened. He then promised such a thing would never happen on his watch, again.
The exchange between Trivers and MacLauchlan is a little less than 8 minutes. Trivers asked five questions and, perhaps because it was opening day in the House, the Premier rose to answer each question himself – that didn’t often happen.
Words have a way of rolling out of MacLaughlan, leaving you slightly mesmerized and (almost) convinced that he answered the question intelligently, in a way that made sense, sorta, you think, but the more you think about it, not really. That’s why it’s important to “dissect” exactly what was asked and what was answered. Words matter….in fact, a “word” matters.
To make that task a little easier I’ve broken up the entire exchange into five clips (nothing was left out) with each clip being one of the five questions and answers.
Although the videos speak for themselves, to better understand what is being said. I’ll provide a few “tee up” contextual background comments before each clip and also share an observation or two after the clip.
Question # 1: Why Were Emails not Among the 10,000 Documents?
It had just been learned a month earlier that the email accounts, emails and network files of three senior government employees had been deleted after they left the government. So when the Fall sitting convened, that issue was brought up often. from a number of different angles.
At that time, it wasn’t known who the three senior officials were, or who destroyed their records in contravention of the Archives and Records Act, Treasury Board Directives, and Departmental Record Management Policy.
The particular angle that was taken by Trivers with his opening question connected those deleted documents with the Government’s obligation to provide the Auditor General with all relevant documents she needed to do a proper audit; an investigation and review of documentation she was mandated to undertake by Premier MacLauchlan.
Premier MacLauchlan begins his answer by saying how many records were provided to the Auditor General; however, being the first day back in the Legislative Assembly with all media eyes on him to see how he would respond and speak to the findings in the AG’s report, he seemed to move quickly to acknowledging the truth about the deleted accounts and documents, giving no details mind you, but then quickly segueing into a firm promise that…let’s use his words: “It’s my understanding that there were accounts that were deleted – and Mr. Speaker – that’s is not something that will take place AGAIN, Mr. Speaker, under this government.”
Lawyers are extremely careful with words. A “shall” or a “must” makes all the difference. Something that sounds to everybody to be saying “It never happened under my watch” is interpreted by a judge as meaning exactly what it says “….my watch, AGAIN.”
That word “again” protected MacLauchlan from the charge of having said that his Government never did what he just agreed wasn’t good and promised wouldn’t happen under his government, again.
What he didn’t clarify for the House was how just days after winning the election in May 2015, Maclauchlan had ALL of Robert Ghiz’s electronic emails, email accounts, government-issued Blackberry, and Network accounts deleted. But the PC MLAs weren’t aware of that at the time.
Also, it was also only days after Premier first became Premier (when Ghiz resigned in February 2015) that the Motherlode of materially-relevant documents in Brad Mix’s two Archives mysteriously went missing. MacLauchlan didn’t mention that at the time either.
Question # 2: Why Did you Allow Officials to Withhold Records?
In his second question, Trivers zeros in on the fact that it wasn’t random senior officials whose records were destroyed, but three of the key officials involved in the egaming file. Again, Trivers connects that fact to the AG because that’s how it came to be discovered: the AG asked for records from the key people involved in the file and she didn’t get them.
Trivers knew the answer to his own question on that one (they were deleted) but by asking the Premier to once again publicly admit and explain what he thinks about it all, and more importantly, what he was going to do about it certainly put the Premier on the defensive.
MacLauchlan either misunderstood Trivers or attempted to confuse the issue purposely, because Trivers clearly states that NOTHING was provided to the Auditor General from those Key officials who had all emails, electronic files, BBMS, text messages, and paper files destroyed.
MacLauchlan again assures the House and general public that the deletion of email accounts won’t happen AGAIN, and like a bank robber pointing out to the police on the way to prison all the banks he didn’t try to rob, concludes by saying that not all the records requested were deleted, missing or refused the AG, and many public servants cooperated, but that had nothing to do with the question.
This next question from Trivers revealed a matter of incredible importance that has never become a topic of discussion to my knowledge: that Premier MacLauchlan broke the law by deliberately violating the Audit Act. Pay close attention to the nervous, but a complete denial of the claim that he withheld documents from the Auditor General.
Question # 3: Why did you Breach the Audit Act and Obstruct the AG?
Great question Trivers! Premier MacLauchlan said he considered the way Trivers portrayed the matter to be unfair and inaccurate saying: “It was our OBJECTIVE to ensure that the Auditor General would have all of the information to conduct a complete review.”
There’s another one of those sneaky lawyer words: “objective”. Having an “objective” to do something is a far cry from recognizing a moral and legal obligation and honouring that duty in action.
MacLauchlan made such a statement of complete denial clearly knowing that the AG felt strongly enough about not having received what she needed from his Government to have written a special Appendix in her report. In fact, she outlined a number of serious “scope” limitations that restricted what she could investigate and audit, as well as what she was unable to consider as a result of principally four things:
- Records identified as having been destroyed permanently;
- Records that should exist but are not produced or accounted for in statutory declarations;
- Records refused to be released by the MacLauchlan government and,
- Project Management documents from McInness Cooper, the law firm acting as Project Manager on the secret e-gaming file, according to the AG.
What exactly does “There were none provided by government even though we were advised, and have evidence that some government business relevant to these files was conducted through these forms of communication” mean if not that Government didn’t provide her with all the relevant documents she requested?
Pockets of “missing records” have since been identified as a result of various FOIP requests, including 2 years of Brad Mix’s records, as well as all of Robert Ghiz’s e-gaming records.
Maines currently has a review with the Information Commissioner on a recent FOIPP request to the Premier’s Office that came back with a final “no records found” response. That means that not a single record was found between Premier Ghiz and his Chief of Staff, Chris LeClair, for the entire 6 months prior to LeClair leaving government to work as a consultant with McInnes Cooper on the same secret egaming file.
It appears that the AG had indicated a potentially widespread problem with missing records, but her somewhat obscure way of sharing this important information wasn’t picked up on by the Opposition, or media, or anyone as far as I know.
Forgive the digression, but it’s a pet peeve of mine that Auditor General and Information Commissioner reports never “name names”. Talk about a double standard!
Imagine waking up tomorrow and reading the “court report” in the paper and reading that Judge Nancy Orr charged “a local Tim Horton employee with drunk driving…..” Why have a Court report at all?
With the amount of time you have to invest to learn all the names of the constantly changing positions in crown corporations, agencies, departments, especially deputy ministers, and directors…..making sure to correctly match the precise time periods with the right people….well, who can afford the time to figure out “who’s who?” let alone “who dun it!”
A totally cost-free change that would greatly improve the “corruption inclination” factor among all government employees and elected officials (really, who wants to see their name in a report attached to “law-breaking”? – and let’s also get rid of all the euphemisms like “noncompliance with the statutory blah blah blah” and speak in plain English: we ordinary folk call it breaking the law….and actually, that’s what they call it when it’s not about them.
When requests for documents were sent to department officials by the AG, those senior Departmental officials had to sign sworn statutory declarations similar to document disclosure forms in court. Along with providing the AG with all the records in the possession of the government relevant to the request, there was a requirement to also inform the AG about records that were once in the possession of the government but were no longer.
The AG went out of her way to inform the reader that she specifically asked that the declarations “…indicate whether the information requested no longer exists.”
Elsewhere in her report, the AG notes the following:
When she says “…who took responsibility for these former employee’s records…” I take that to mean that they were to account for those records in the declaration. The AG notes, however, that ALL the statutory declarations only covered records “known to exist” and obtainable by the person signing the declaration, which sounds to me like she was suggesting a widespread problem with missing or unaccounted-for records, although I find what she is saying vague to be honest.
The very next sentence highlights the gravity of what she is saying, however, as she notes that public bodies were breaking the Archives and Records Act, with a concluding comment that she and her office were uncertain about the extent of missing and/or deleted documents.
The Premier – being a lawyer, not to mention former Dean of a Law School – certainly knew the potential legal implications that could possibly ensue from a public admission that he broke the Audit Act by refusing to provide records to the Auditor General – records she had specifically requested – so he made sure he didn’t admit anything (notwithstanding the evidence to the contrary) but did it nonetheless.
Question # 4:
Trivers picked up in the Premier’s answer to his 3rd Question on the admission by the Premier that records that should not have been destroyed had in fact been destroyed. He used that as a launching pad to declare – and this is important to note – that the Auditor General – not him – had found that those deleted records constituted “illegal acts”.
Machlauchlan responded as if Trivers was making inappropriate allegations in the Legislative Assembly that illegal acts had occurred and he should stop. But that’s not what Trivers was saying at all. Listen Carefully: what Trivers says is that it was the AG who had clearly indicated that in her report.
It’s amazing how many times things were said by Premier MacLauchlan and Liberal Cabinet Ministers defending Ghiz’s egaming scandal that misinterpreted what the AG said (or didn’t say) in her Report – not to mention numerous Public Accounts meetings – claims and statements easily proven false by the AG’s own words.
To remove any doubt about whether the AG found that illegal acts did in fact occur, one has only to read her report:
No one is going to convince me that Wade MacLauchlan doesn’t know that non-compliance with legislation = breaking the law = committing an illegal act. Whether those acts were criminal goes to intent, but according to the AG, laws were broken.
Question # 5: Will you Come before the Public Accounts Committee?
Trivers sums up his questions by saying that the picture the Premier paints with respect to “deleted emails, accounts deleted, BBM pins” is serious and calls for further investigation. Perhaps Trivers missed an opportunity with this final question because Maclachlan immediately saw an easy out and took it.
Notice how the Premier seems to relax a bit for the first time during the tussle with Trivers with this final question, knowing that all he really had to say was if he was to be invited to Public Accounts, that would have to come from Public Accounts, not an Opposition MLA during Question Period.
With a Majority of Liberals on Public Accounts voting down every PC motion to bring witnesses with the unabashed excitement of a game of whack-a-mole, it’s little wonder there’s Liberal MLA chortling and chuckling in the background.
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