PREAMBLE

There are times when such a bizarre set of circumstances are needed to bring about a particular outcome that the likelihood it will ever happen is deemed so remote people feel confident declaring it will only happen when “hell freezes over” or “blood gushes from a stone” or the perennial favourite. “when pigs fly.”

Mr. Burns from the Simpsons once made such a declaration, saying he’d donate a million dollars to the local orphanage…then quickly added: “when pigs can fly,” with a shared chuckle with Mr. Smithers.

Unfortunately, neither Burns nor Smithers were aware that a backyard-barbecue mishap had just happened at the Simpson’s which sent the “whole pig on the spit” into the town reservoir, where a further sequence of bizarre events happened, sending…well, you can watch what I’m trying to describe for yourself:

Unlike Mr. Burns  – flying pigs or not –  whether Ms. McGrath-Gaudet answers a whack of tough questions under oath in the PEI Supreme Court in a little more than a week or not – questions about her actions associated with breaches of Contempt Orders and confirmation of Illegal activity by the Information and Privacy Commissioner – is not hers to make. In fact, her appearance has already been decided and scheduled.  On August 11th Ms. McGrath-Gaudet will:

1. Appear before a PEI Supreme Court Judge  via Zoom;
2. Put her hand on a bible and/or otherwise swear an oath to tell the truth, then;
3. Be cross-examined by one of the leading lawyers in Canada about both her

• • Involvement in the denial of access to FOIPP requests resulting in breaches of Court Orders, but also
  • The Privacy Commissioner’s BRAD MIX ORDER issued on June 9th!

In this article I provide:

1. 1. A summary overview of the key issues surrounding the upcoming August 11th Motion;
   2. An explanation how this PEI Supreme Court Hearing “dovetails” with the Special Committee established by the Green Party’s Motion 86; and finally,
   3. Offer a few concluding comments, and some information about how anyone can watch on August 11th what I’m’ sure will be a fascinating and historic event in PEI, with potentially far-reaching and long-lasting consequences for our democracy.

1.  A Summary Overview of the Key Issues

I’ve already published a number of articles on both the upcoming Contempt Motion Hearing to be heard on August 11th by PEI Supreme Court Judge Gregory Cann, as well as on my Brad Mix FOIPP request and review, the subsequent Order by the Privacy Commissioner made public on June 9th, and “Motion 86″and the decision by the Legislative Assembly to establish a Special Committee to dig deeper into the Privacy Commissioner’s Brad Mix Order.

What follows is an attempt at a “synopsis” for readers who may be unfamiliar with the backstory.

[A]  August 11th Contempt Motion

In a nutshell, in 2019, the PEI Government was delaying the release of egaming documents to Paul Maines with a number of FOIPP requests. The Department of EGTC had exhausted all means to continue withholding the records legally. This was a breach of section 9.2 of the FOIPP Act, and Mr. Maines filed several reviews with the Privacy Commissioner as a result of this illegal activity.

The Department of EGTC – Erin McGrath-Gaudet – then asked Maines if he would sign “consent orders” drawn up by the Privacy Commissioner, which he agreed to do. Those Consent Orders had dates by which the Department was legally obliged to provide documents to Mr. Maines.

The Commissioner, Erin McGrath-Gaudet and Maines all signed each Order, then Maines immediately registered them with the Supreme Court, making them Court Orders. The Government broke all those Court Orders by failing to deliver the documents to Maines by the specified dates. That’s why they’re now going to Court, and that’s why Ms. McGrath-Gaudet will have to explain why she and her Department made those decisions and took those actions.

I have provided lots of detail about how the Paul Maines Contempt Motions came about and what they entail, especially in a January 15, 2020 article – King Government’s Violation of Court Order Results in “Contempt” Order Court Filing. so I won’t plow that ground again. I’ll provide just one statement from Ms. McGrath-Gaudet’s May 29, 2019 letter to the Privacy Commissioner where she stated:Ms. McGrath-Gaudet knew when she wrote those words – or she should have known –  that it had long-since been determined by her Department [March, 2015] that there were no records for that time period. That’s why “no additional records” were found.

[B]  Privacy Commissioner’s June 9th Order and Motion 86

I used to think that I’d see pigs fly long before I’d see a PEI Government Deputy Minister or Minister be compelled to appear before a Legislative Standing Committee to answer for unethical decisions and illegal actions that either the Auditor General or Privacy Commissioner discovered they were responsible for either authorizing or allowing to happen.

My thinking has now changed, thanks to two things: (1) the change in the Legislative Committee structure – with equal representation from all Parties – where Government can no longer do what Government has done for as long as I can remember –  (1) vote down motions from opposition parties calling for witnesses  to appear before the committee; and (2) Motion 86 passing in the Legislative Assembly that will establish a Special Legislative Committee with a mandate to, in part, find out who deliberately deleted 2 years of important records, and then covered that up.

How did this unprecedented situation come about?

As you may be aware, my e-gaming investigation involved a FOIPP request for Brad Mix documents which I had submitted to the Department of Economic Growth, Tourism and Culture on October, 2018. The Commissioner joined my review with 4 Brad Mix FOIPPs from Paul Maines several months later, and a year later,  Ms. Rose issued her scathing Order on June 9, 2020.

There was good media coverage. then a “same old – same old” response from Government, with Hon. Matthew McKay, the Minister of EGTC, announcing a review of the illegal activities, deception and cover-up that the Privacy Commissioner had indentified he and his Deputy Minister, Erin McGrath-Gaudet were responsible for in her Order.

It was actually a PC MLA – Sidney MacEwan – who first raised the matter of the OIPC Brad Mix Order in the Legislative Assembly with a question to EGTC Minister Hon. Matthew MacKay:

“Minister, we were part of a caucus that pushed hard for answers on the e-gaming file. What do you plan to do with the latest findings of the privacy commissioner?” MacEwen asked MacKay.“ [“P.E.I. government pledges external review as questions loom over missing e-mails,” Guardian, June 22, 2020].

MacKay responded that his department would be contracting an external investigator to look into the findings of the Privacy Commissioner’s report:

“We’ll be asking the external investigators to review two things: an extensive review on the missing records referred to in the commissioner’s report, as well as a review of our current practices and infrastructure related to electronic records and security for those records,” MacKay said, adding, “We want to make sure that whoever comes in to do the review has no association with government at all”

That last comment is interesting – here we see Minister MacKay bending over backwards to assure Islanders there will  not be so much as a smell of any “conflict of interest” with the person hired BY the Minister and Deputy Minister to undertake the review, who will oversee and control the process and outcome of that investigation and decide what or what not to make public, who were named in the Order as responsible for the illegal activity, deceptive communications with FOIPP applicants, and cover-up the critically-important information about records that were deliberately deleted. Talk about your blind spots!

Government did not remove Ms. McGrath-Gaudet from her position following the disturbing and very serious findings in the Commissioner’s Order, pending the outcome of the investigation.  In fact, the “cover-up” and deception in which she was clearly involved was never a topic of discussion by either the media or MLAs in the House, only the destruction of Brad Mix recods.  Rather, a decision was made by the King Government to put Ms. McGrath-Gaudet and Minister MacKay in charge of the investigation.

It was at that point that Hon. Peter Bevan-Baker introduced Motion 86, specifically citing the “same old, same old” flawed approach announced by Government as woefully inadequate and unacceptable, further declaring that Islanders not only had a right to more transparency and accountability from Government on such an important matter – but were demanding it.

To highlight the very significant overlap between (1) what will transpire with the cross-examination of Ms. McGrath-Gaudet in Court on August 11th, and (2) the mandate and objectives with which the Special Standing Committee is tasked – as spelled out in Motion 86 – I have highlighted elements of particular importance in the wording of the Motion:

WHEREAS a June 9, 2020, order of the Office of the Information and Privacy Commissioner (Order No FI-20-007) raised serious questions about the possibility [sic – the Commissioner’s finding was that government records were deliberately deleted] of government records being improperly deleted;
AND WHEREAS access to government records is fundamental to open and transparent government;

AND WHEREAS government has committed to an external review of this issue; AND WHEREAS an external review will not provide the openness and transparency that the public expects and deserves;

THEREFORE BE IT RESOLVED that a Special Committee of the Legislative Assembly on Government Records Retention be created: with a six person membership, consisting of two members from government members, two members from the Official Opposition and two members from the Third
Party;

AND THEREFORE BE IT FURTHER RESOLVED that the committee study the missing records referred in the Information and Privacy Commissioner’s order and the current practices related to electronic records and security;
AND THEREFORE BE IT FURTHER RESOLVED that this committee report back to the Legislative Assembly with recommendations within six months.

2. Contempt Motion: A God-send for Special Committee MLAs

If the hearing scheduled for March 27 & 28th, 2020 had went ahead as scheduled, Ms. McGrath-Gaudet would no doubt have been cross-examined by Paul Maines’ Bay-street lawyer, John Phillips, however, that cross-examination would  only have dealt with her involvement in the particular FOIPPs for which the terms of the Court-enforced Consent Orders were breached.

The Deputy Minister of EGTC would NOT have been cross-examined on the Order from the Privacy Commissioner at a Contempt Motion Hearing in March. But Ms. McGrath-Gaudet will have to answer questions on that Order on August 11th, thanks to three serendipitous events:

1. Covid-19 delayed the March 27/28 Hearing;
2. The Privacy Commissioner issued her Brad Mix Order on June 9th; and
3. Paul Maines and his lawyer were able to convince the judge of the relevance of having the Privacy Commissioner’s Order entered into the record for the August 11th Contempt Motion.

Summary

The mystery around “deleted emails in the PEI Government” seems to be catching a fair bit of off-Island interest within the Canadian and Global IT community. Following the issuance of the Privacy Commissioner’s Order, I came across an article titled “A deleted email mystery in Prince Edward Island” on two different Tech sites [IT World Canada and Aviance Tech News]. Here’s a few paragraphs from that article:

“[Information and Privacy Commissioner Karen] Rose did note that PEI’s Department of Economic Growth, Tourism and Culture (EGTC) didn’t fulfill its duty to report that emails were missing to two persons who made a request under the provincial access to information law.

“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,” Rose wrote. “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.

“I am at a loss to explain the motivation of the EGTC [Erin McGrath-Gaudet and Minister MacKay] in withholding such key information from the applicants.” All she could do was refund the applicants’ $5 application fees.”

All the Privacy Commissioner did was “order” EGTC to refund my $5 application fee, not “compel” them, which she can’t do.  And FYI, I have not yet received that $5 refund, which is seriously impacting my current cash-flow situation and my ability to function as an independent investigator with a business plan that has yet to generate any revenue. Hopefully the 500-sheet pack of printer paper that I’ve had my eye on for the past few weeks that’s on sale at Walmart for $3.99 (plus tax) will hopefully still be on sale when (if ever) I get that cheque.

Considerable background material on these issues can be found in previous articles on my website for those of you who are keen to learn more and/or may be planning to watch the upcoming Zoom Court Hearing.

I’ll  post another short article with the details about how to sign up to watch the Hearing on Zoom as soon as I get them. It’s a simple matter of sending an email asking for access, then signing a waiver promising you won’t record or reproduce the hearing material, then you’ll be emailed a Zoom link with sign-in instructions.

If you’re not able to watch the hearing on August 11th, at least keep your camera handy and plan to keep your eye on the sky….you never know, you might just be lucky enough to snap a pic of pig flying that’ll be sure to make CBC Compass’s photo of the day guaranteed. I’m now thinking it could possibly happen…stranger things are about to transpire in PEI…like a Deputy Minister having to answer for misdeeds under oath at the hand of a skilled lawyer in the PEI Supreme Court, with Islanders able to watch for free from home.

I doubt that Islanders will be given a “heads up” about this upcoming August 9th Hearing on Zoom from the media – none was provided for the Zoom Appeal – so consider sharing this article so as to give as many Islanders as possible the choice about whether they might want to participate by watching. Thanks.