The Oda ado: overblown?

In the spirit of devil's advocacy, Colby Cosh lays out the defence case

No doubt I’ll be called a Conservative lapdog for saying so, but I find myself balking at the elite consensus that Bev Oda deserves hanging for having deceived the people’s House. In the spirit of devil’s advocacy (or the presumption of innocence), let me lay out the defence case. You can consider, if you like, that it is here to serve as a target. We’ll start from Michael Ignatieff’s version of the indictment: “We have a Prime Minister who lets a minister deceive the House of Commons, falsify a document, and instead of reprimanding or dismissing her, gets up in this House and actually applauds her.” [Cries of “Shame, shame”]

The CBC’s timeline suggests three occasions on which Oda could personally be said to have deceived the House: in her written answer to Glen Pearson’s oral question of Apr. 23, in her answers to questions in the House on Oct. 28, and in the Foreign Affairs committee hearing of Dec. 9. But the Oct. 28 exchange doesn’t really seem relevant; it took place after the controversial “altered” document came to light in a access-to-information request filed by Embassy magazine, and it had already become clear to everybody that Oda overruled an initial recommendation from CIDA staff to fund the ecumenical social-justice organization Kairos. That is the whole context of that discussion: Liberal Francis Valeriote put it to Oda that she refused funding “in absolute contradiction of her own department’s findings” and she didn’t correct or dispute the assertion.

So it’s Apr. 23 and Oct. 28 that constitute the case against her, right? (Whatever we think of Jason Kenney’s December ’09 comments in Israel, we can’t hold Oda responsible for those. We can use those to make the case that the cut to Kairos’s funding was political in nature—which it pretty clearly was, under any possible interpretation of events.) Here is the controversial Apr. 23 exchange:

Pearson: With regard to Kairos, which has lost their funding from the Canadian International Development Agency (CIDA) as of November 30, 2009 due to Kairos no longer fitting CIDA priorities: (a) what are the CIDA priorities that did not fit well with the priorities of Kairos; (b) what sort of criteria does CIDA examine to determine whether or not a non-governmental organization will receive funding; and (c) what specific criteria did Kairos not meet to have their funding cut by CIDA?

Oda: Mr. Speaker, with regard to a) The CIDA decision not to continue funding Kairos was based on the overall assessment of the proposal, not on any single criterion.

With regard to b) Non-government organizations’ proposals to CIDA are assessed on a variety of criteria, which are described on CIDA’s website www.acdi-cida.gc.ca.

With regard to c) CIDA receives more proposals than it has the resources to fund, so that even some proposals that meet the Agency’s basic criteria must be turned down.

The whole issue here, as far as I can tell, is the phrase “the CIDA decision”. Oda didn’t come right out and say that CIDA staff had no problem with Kairos’s application, but she did suggest that even some applications that might otherwise pass muster with the department are rejected. The Conservatives have offered the defence that a minister’s final word becomes a “CIDA decision” as soon as it is made, whatever advice she might have received from agency staff beforehand—and in a narrow technical sense that is certainly true, isn’t it? That’s how the public service works.

If Oda had offered this slippery answer to a direct question about whether she had disagreed with the advice of senior agency officials, she would certainly be guilty of deceit. But she didn’t. Pearson’s questions were only about the process, as a whole, and its end-product. That might seem like a crabbed, narrowly technical defence of Oda, but then, the charge against her vis-à-vis the Apr. 23 question is pretty narrowly technical. The idea is that a reasonable person unpacking the phrase “CIDA decision” could only find that it meant “a preliminary decision taken by CIDA staff without the involvement of the responsible minister”. I can certainly see myself arguing it the other way—Oda has actually apologized for possibly leaving an incorrect impression—but I cannot feel that it is a clear-cut case of contempt of Parliament.

Nor is it quite clear that the Opposition really feels that way, because it’s not making a breach-of-privilege claim involving any of that. Their appeal to the Speaker is strictly concerned with the evidence she gave to the Foreign Affairs committee on Dec. 9—after it was plain to everybody, as a consequence of Embassy‘s reporting, that the Kairos funding decision was taken against agency advice. This exchange was focused more narrowly on the question of who had added the infamous “NOT” to the ministerial memo (seen here, and pretty much everywhere else over the past week) recording that final decision.

There has been a lot of wild talk about “forgery” because the “NOT” was inserted into the memo after the signatures of CIDA staff were appended to it. It is definitely unwise (nay, foolish) to modify a document after it has been signed without the explicit permission of the other signatories—but in this case we have a “forgery” without even an apparent intended victim. CIDA President Margaret Biggs, who had signed the document, told the committee that there was no issue—that, in effect, the “NOT” was just an annotation and that it is ordinary practice for a minister to mark up a memo in that way, or to ask for it to be done:

Yes, I think as the minister said, the agency did recommend the project to the minister. She has indicated that. But it was her decision, after due consideration, to not accept the department’s advice.

This is quite normal, and I certainly was aware of her decision. The inclusion of the word “not” is just a simple reflection of what her decision was, and she has been clear. So that’s quite normal.

I think we have changed the format for these memos so the minister has a much clearer place to put where she doesn’t want to accept the advice, which is her prerogative.

We’ve seen commentators and opposition members hastening to the defence of the public service when its members get into squabbles with Conservative ministers. It is odd to see the Opposition criticizing both in a case in which they appear to be in complete accord about the acceptability of something that transpired. Margaret Biggs says there’s no “forgery” case; how can you construct one without either her or the other signatory, Naresh Singh?

Colleague Coyne is sure that some falsehood was uttered before the committee. He’s just not sure what it is. “…there isn’t any doubt,” he writes, “that Oda lied to Parliament about this addition [to the document]: the only question is when. Did she lie in December when she told the Commons foreign affairs committee she had no idea who altered the document, or was she lying on Monday when she told the Commons that in fact it was done at her behest? (Or will she claim that, although she directed it be altered, she did not know, as of December, who did it?)”

I have got to say here, I do not find it remarkable at all that Oda would be unable to say who, specifically, wrote the “NOT” on the paper. I am sure that cabinet ministers give non-specific orders to have X or Y done a hundred times a day. The sequence of events was clear by the time of the Dec. 9 committee hearing, and Oda’s moral responsibility for the anti-Kairos decision had already been established; both she and Biggs positively insisted on that at the hearing. Given any theory—a Harper-ordered 13th-hour reversal of an original decision; a last-minute intervention by space lizards—it is still Oda who has the responsibility.

Coyne is perfectly right to say that it does not matter whether she “altered a document or caused it to be altered”; clearly it was done on her orders. Any yet Coyne can’t imagine for the life of him why the document was altered: “How it could be imagined a handwritten addition to a typescript document would fool anybody?” Maybe the answer is that it can’t be imagined, and that Oda did not intend for anybody to be fooled? Since that is just what we’ve been told by one of the parties whose interests were supposedly compromised, it seems at least possible.

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