Federal Court judge orders government to release documents on Senate scandal

Ruled some information was wrongly classified as sensitive legal or ministerial advice

A Federal Court judge says the central bureaucracy that serves the prime minister and cabinet improperly withheld pages of information on four senators at the heart of the 2013 Senate spending scandal.

Justice James O’Reilly is ordering the partial release of the documents — including a memo Canada’s top bureaucrat wrote to then-prime minister Stephen Harper — after concluding some of the information was wrongly classified as sensitive legal or ministerial advice.

O’Reilly also agreed that portions of the documents related to senators Mike Duffy, Patrick Brazeau, Pamela Wallin and former senator Mac Harb should remain out of public view — although those details of the written ruling are themselves blacked out.

Indeed, large swaths of the judgment have been redacted to prevent the public release of information both sides in the case considered to be confidential.

In August 2013, The Canadian Press filed an access-to-information request to the Privy Council Office, asking for any records created since March about the four senators. Officials refused to release 27 of 28 relevant pages, providing only what O’Reilly described as “innocuous information” like letterhead, signatures, dates and names.

The information commissioner took the Prime Minister’s Office to court in late 2015, believing officials “erred in fact and in law” when they declared every word on the 27 pages to be exempt from the Access to Information Act.

Prime Minister Justin Trudeau’s office continued the case after the Liberals won the 2015 federal election.

O’Reilly found that many of the documents contained factual information that should have been released, including decisions Harper made during the time, because such material doesn’t constitute advice or recommendations.

The judge also rejected the government’s arguments that some of the information could be withheld because it contained sensitive personal information that appears to have been applied to “a financial benefit.”

Further details, again, were deleted from the written ruling.

Neither Trudeau’s office nor the federal information commissioner immediately responded to a request for comment.

It was in 2013 that the Senate was plunged into scandal when questions were raised, audits ordered, and criminal investigations launched about the housing expenses incurred by Harb, Duffy and Brazeau, as well as Wallin’s travel expenses.

Harb resigned that summer after reimbursing some $231,000 to the public purse, and in November the upper chamber voted to suspend Duffy, Wallin and Brazeau without pay for two years.

Duffy was charged and then cleared last year of 31 criminal charges relating to his Senate expenses, and the RCMP subsequently closed investigations against Wallin and Brazeau. All were subsequently welcomed back into the Senate.

Duffy is now suing the Senate and the government for more than $7.8 million.

In a claim filed in August in Ontario Superior Court, Duffy alleges his suspension was unconstitutional and a violation of his charter rights, and that the federal government is liable for the RCMP’s alleged negligence in its investigation.