PREAMBLE

No one wants to think Hon. Matthew MacKay is anything but a  stand-up guy who wants nothing but the best for his constituents and all Islanders.

Just listen to what PC MLA Sidney MacEwan had to say about how he believes Hon. Matthew MacKay is the perfect person to oversee a third-party investigation to get to the bottom of  things:

No one expressed any concerns or raised any questions about the appropriateness of Minister MacKay heading up an investigation for Government, which is a little strange, especially given the fact that the investigation will be focused on Minister MacKay’s Department, and on Brad Mix, who is still  the Senior Manager of the Recruitment Division of Innovation PEI under Minister MacKay.

No one asked any questions about any of that at all. That’s the only reason I’m writing this article – to  lay out facts that give rise to legitimate concerns and questions, the answers to which affect how the investigation should be structured and proceed on a go-forward basis.

I fully understand how it’s not polite to publicly raise suspicions about someone, and how other MLAs would be reluctant to raise these concerns and questions. There’s a legitimate fear they’ll be seen as unfounded insinuations that the Minister may have been involved with the confirmed illegal activities and cover-up. There’s no evidence of that kind of involvement at this point, so why poke a hole in that bees nest?

Although illegal acts were confirmed to have happened within his department, Ms. Rose’s report fell short in discovering  “who” destroyed those 2 years of Mix’s egaming records. That puts everyone within the Department, especially senior bureaucrats and the Minister, in the very same boat, and an investigation will need to involve interviews and focused inquiries with any one of these individuals, including the Minister. Minister MacKay should therefore not be overseeing the process that determines how he fits into the investigation and will himself be investigated. This has nothing to do with Matthew the person…only Matthew the Minister of EGTC.

What’s really important here is that we are able to determine what the most appropriate approach to discover the pertinent facts needed in order to explain what needs to be explained; the approach that has the best chance of being successful. Simple as that.

This has absolutely nothing to do with anything personal, including gossipy-type speculations about the moral character of Minister MacKay.  This consideration about how an external investigation should happen is solely about determining a proper process.

Like lawyers with conflicts of interests who remove themselves from or decline cases, the Government should – in my opinion – be voluntarily stepping aside to show full accountability and transparency.

PC Cabinet Ministers were incredibly quick to grab the reigns of this process – with no consultation or discussions whatsoever. Now Government has decided that the Executive branch of government will again investigate the executive branch of government…which is just a little much, after what Islanders have been put through with that flawed approach over the past decade or so!

This eagerness demonstrated by Government to control the investigation is suspicious to me, especially due to the clear instance of bias and conflict of interest, e.g., overseeing an investigation of EGTC.  With Minister MacKay insisting on proceeding and staying in control of the investigation last Thursday when he spoke to the issue….well that doesn’t in instill a lot of confidence and trust with me…it raises suspicions.

An investigation truly set on getting to the bottom of this matter in a relatively short amount of time (6 months) should be about determining the most appropriate course to follow after a careful consideration of the facts.

We need to be especially careful that we don’t allow our natural Island propensity to instinctively bestow our patented Anne of Green Gables brand of summertime politeness on troublesome or embarrassing situations to push plain old commonsense reasoning completely to the side, which appears to have happened so far.

We need to consider how the facts clearly preclude a conclusion that – despite what MLA MacEwan says about Hon. Matthew MacKay being the absolute best person to take charge of the external investigation into destroyed emails  – as it unfortunately turns out for Minister MacKay, he is actually the absolute worse person to take charge of the external investigation into destroyed emails.

There really are only two logical possibilities to consider, given a letter from Minister MacKay’s Deputy to the Information and Privacy Commissioner which I’ll get to in a minute. Either…

(1) Minister MacKay knew what was going on within his department when they deliberately deceived FOIPP applicants (me and Paul Maines) on FIVE separate FOIPP requests for Brad Mix records, and was therefore complicit in that cover-up of destroyed records; or…

(2)  Minister MacKay didn’t know what was going on within his department and was therefore not in control of either this file or the people who were in charge of it within his department.

Either way, that’s part of what had to be found out in an investigation, and the Minister shouldn’t be deciding who asks the questions, or what kind of questions are asked (e.g, scope of the investigation).

Either way, Minister MacKay should not be in control of this investigation under the dome of silence afforded in Executive Council through Cabinet Confidence. This belongs with the Legislative Branch of government.

1.   Information and Privacy Commissioner’s Order Against EGTC

The scathing findings in the Office of the Information and Privacy Commissioner (OIPC) Order – that have now given rise to Motion 86 in the Legislative Assembly – was entirely to do with Minister MacKay’s Department.

I had first initiated that OIPC review back in January, 2019, then several months later Ms. Rose joined 4 other FOIPP requests to mine from Paul Maines also seeking Brad Mix records from the same two-year time period .

The Privacy Commissioners Order confirmed that it was Minister MacKay’s Department (referred to without names as the “public body” in the OIPC Order) who broke the FOIPP Act in multiple instances, in multiple ways in all of 5 FOIPPs that were lumped together into one review. This simply can not be  glossed over and ignored!

We need to revisit what the Privacy Commissioner said in her June 9, 2020 Order concerning the deliberate destruction (and cover-up of the destruction) of Brad Mix emails for the entire 2-year e-gaming tenure.

Commissioner Rose couldn’t prove who destroyed the records within EGTC. Government’s response has been to pick up where she left off, with an announcement of an external investigation to be overseen by the Minister responsible for the Department to be investigated. That’s not right.

Before the Tories break a bunch of ankles falling off their high horses extolling all they once did to get to the bottom of the egaming scandal, document destruction, and cover-ups (past tense you’ll notice) let them first come clean about how they have been, and continue to be, actively engaged in pursuing the same completely false and perjured narrative advanced under the previous government in Court since becoming Government.

Let them first confess with sincere compunction that they have been doing absolutely everything within their power to stay the course with the cover-up, admit as little as possible and only as much as is forced, and do whatever to frustrate both Maines and my continued efforts to access government records to this very day.

Consider just a few paragraphs from Ms. Rose’s Order:

[47] I find that the EGTC did not fulfill their duty to be open, accurate and complete when responding to the Applicants, by failing to explain why very few responsive records were found. I further find that the EGTC deliberately withheld this important information from the Applicants, which is a violation of their section 8 duty. I would have expected the gap in the named employee’s emails to be one of the first facts to be communicated to the Applicants, following the EGTC’s realization that their search could not be properly completed. Instead, the EGTC provided the few records they had to the Applicants, and remained silent about the possibility that there could have been more, but they had not been retained.

[48] I am at a loss to explain the motivation of the EGTC in withholding such key information from the Applicants. I have overseen many access reviews since November, 2002, and have observed that public bodies are forthright in their dealings with applicants, even when the information the public body must provide is embarrassing, or does not place the public body or a given employee in the best light. In such circumstances, public bodies prioritize their duty to respond openly, accurately and completely. Why the EGTC chose to keep the fact of missing emails from the Applicants remains a mystery, even after multiple submissions to the Commissioner by the EGTC in these reviews.

Many of those “multiple submissions” were signed by Deputy Minister McGrath-Gaudet.

The PEI Government also failed to disclose that same information it was lying about in FOIPP reviews to the Court in the CMT law suit, in what can only be seen as an egregious violation of the Rules of Court.

When the PC Government was elected, information that was known to EGTC about Mix’s destroyed emails was still being kept secret, and a false narrative was being presented in correspondence from Deputy Minister Erin McGrath-Gaudet and the Privacy Commissioner.  That wasn’t something inherited from MacLauchlan… those documents were signed by Deputy Minister Erin McGrath-Gaudet.

Consider the following sections from a May 27, 2019 letter from Erin McGrath-Gaudet to the Privacy Commissioner, later filed in Court by CMT. There’s a lot more to this letter…I put six “captures” of parts that highlight how Ms. McGrath-Gaudet presented things as if there were records to search, despite the department knowing  since 2015 that there were no records at all to search for this entire time period:

2.  Three  Upcoming FOIPP “Contempt Motions” Against EGTC

The three upcoming Contempt Motions against the Department of EGTC make it especially inappropriate that the Minister of EGTC take the lead with the announced external investigation. If ever there was evidence of “bad faith” within EGTC, it’s with this business of the deemed refusals and breach of Orders from the Privacy Commissioner.   Notice that it says the “applicant agreed” indicating that it was EGTC who asked for that Order – after Ms. Rose confirmed they were in breach of the FOIPP Act  – so that the Department could get back in compliance with the law.

Consider the following from that Order that very clearly indicates a legal “signed” obligation to have met the January 7, 2020 deadline for disclosure to Maines:

In a Guardian article titled, “E-gaming plaintiff back in court to press PEI government to release internal e-mails,” Maines stated his belief that the provincial government [Minister MacKay’s Department] was deliberately withholding documents in contravention of the Freedom of Information laws. That was denied by government as hogwash at the time, but now we know that too was a lie. Maines was proven correct by the OIPC Order:

“Just connect the dots. It’s never happened before,” Maines told The Guardian.

“They won’t produce them. I don’t know how else you can look at it.”

In the court filings, Maines says a FOIPP request was filed on May 14, 2019. He was initially informed he would receive the information by July 22 but then received several notices of delay.

Finally, in October, McGrath-Gaudet signed a consent order indicating the records would be produced by January 7, 2020. But then came another letter indicating a delay until February. 

“The motion isn’t for me to argue [that the province is] in contempt, it’s an enforcement motion. The courts have to enforce the order,” Maines said.

Information and Privacy Commissioner Karen Rose confirmed this was the first time her office, which opened in 2002, has ever signed a consent order related to a FOIPP request.

“All of our orders may be filed with the court. It’s just that, to my knowledge, nobody ever has,” Rose said. “Rose added that the matter is beyond the jurisdiction of her office and is “out of our hands.”

Erin McGrath-Gaudet will be explaining herself to the Court under cross-examination by a Toronto lawyer, so it is unlikely that she will have time to assist in an investigation of herself from within her own department – another reason the investigation shouldn’t be with EGTC.

Given that it is the Minister and Deputy Minister who will have to explain themselves since they were in charge of the Department committing these offensive and still needing to answer for how it happened, if we are even to scratch the surface as we embark on a journey to the bottom of things, it would be totally inappropriate to allow the Minister and Department of EGTC to be in control of dictating: (1) the scope of the investigation, (2) who does the investigation, (3 how long the investigation takes, and (4) what ends up finding its way into a final report for the legislative assembly and public.

C’mon fellow Islanders! We’ve been down that road enough times by now to know  it’s a dead end.

3.  The Minister was Given a “Head’s Up” – Yet Failed to Act

It certainly wasn’t like I didn’t sound the alarm and provide information that would have – and could have – and should have – prevented further breaches of the FOIPP Act; should have brought the immediate release of documents that were being withheld illegally; and should have brought consequence for those proven to have lied to Islanders and covered up the truth – yet none of that happened. Those public servants remain at their desks. I tried.

If a Kodiak bear couldn’t get the Minister’s attention, I’m at a loss to know what would. They are not friendly at all.

Mention of that Kodiak was in a front page Guardian article for God’s sake!

“A post from Jan. 27, 2020, bore the headline “do they know the danger they’re in?” The headline appeared above a photo-shopped image of what appears to be a kodiak bear stalking both Economic Development Minister Matthew MacKay and his deputy minister, Erin McGrath-Gaudet. The post alleged staff of MacKay’s department have improperly delayed or withheld documents that are subject to a Freedom of Information request.” [Guardian, January 31, 2020].

There was still time at that time for Minister MacKay and his Deputy to have taken action to address at least some of the matters made public at that time. Nothing whatsoever was done as the cover-up and FOIPP breaches continued.   One has to question why nothing was done (1) to fix what there was still time to fix, or (2) to prevent what subsequently followed with further illegal FOIPP activity.

This is from a January 17, 2020 article by Stu Neatby at the Guardian after the first Motion was heard – but then deferred to a future date that at the time was TBD:

“This will become their game plan for documents they don’t want to release. So it’s very important there are consequences, because not everybody can fight this fight. Not everybody can challenge, file motions, hire lawyers.”

A brief hearing Thursday was adjourned after Maines, representing himself, told the court he has filed a second, similar motion and plans to file two more in the coming weeks.

The judge said he would hear arguments related to all four motions at the same time, but no date for a future hearing was set.  Maines is seeking documents he believes will shed light on issues related to his company’s lawsuit against the P.E.I. government.”

Dates were scheduled – then cancelled due to Covid-19 – but have recently been rescheduled for Zoom hearing on August  11th and 12th, 2020 . The PEI Government [Matthew MacKay’s Department] has yet to file Defenses for the second and third Motions filed by Maines. At the first hearing, Maines indicated there might be four Motions; as it turned out, three Contempt Motions will be heard.

Summary

The idea that the Minister of EGTC, Hon. Matthew MacKay, should be in control of an investigation when it was his department that consciously and systematically broke the law to hide, cover-up and intentionally withhold government records from Paul Maines and me shouldn’t even need to be debated.

We can’t remain blind to the facts staring us in the face. If we do, we forfeit commonsense reasoning.  It’s not like something happened, it’s over, and now we need to figure out what happened…the cover-up, denials and delays are continuing with the EGTC to this day.

Minister MacKay had a good idea recognizing the possible advantages of hiring a fully competent investigator with the skills to uncover what untrained MLAs may miss in an investigation. That could be an important component of a full-on effort to really “get to the bottom of things” in the next six months.

Such an external investigation by an “expert investigator” should not, however, be under the control of Executive Council, completely protected by the official secrecy that Cabinet Confidence affords, indeed, “demands” when Cabinet Ministers take their swearing-in oath.

An “all-party” Special Committee as called for in Green Party Opposition “Motion 86” is where the scope of that external review should be decided; where the person for  the investigation is selected; and where timelines are established to ensure a “report back” in time for the findings to be considered by the Special Committee in advance of submission of a final report and recommendations for the Fall sitting of the Legislature.

To allow Executive Council to control the investigation – with the EGTC Minister’s Department under investigation, well… it doesn’t really need to be said that to do such a thing would transform the process into….what’s the word? Oh yeah…a total mockery.