The CBSA relied heavily on private contractors provided by IT staffing company GCStrategies for the development of its ArriveCan app.Adrian Wyld/The Canadian Press
A Federal Court judge has granted a temporary injunction preventing the government from distributing a draft final investigation report into a former border agency official and his relationship with one of the main contractors on the troubled ArriveCan app.
The draft report was presented as evidence in the case and is currently sealed from public release.
In a ruling this week, Justice Henry Brown agreed to a request from Cameron MacDonald to keep the report confidential and prevent the government from distributing it for a few more months while he seeks a judicial review of the Canada Border Services Agency’s plan to share the report.
Mr. MacDonald was a director-general at the CBSA at the time the agency developed and launched the ArriveCan app, which relied heavily on private contractors provided by IT staffing company GCStrategies.
The app for cross-border travellers began as an $80,000 expense but grew to nearly $60-million through extensive use of private IT staffing companies, prompting several probes by parliamentary committees, various watchdogs and separate Auditor-General reports on ArriveCan and federal contracts with GCStrategies.
Mr. MacDonald is now an assistant deputy minister at Health Canada.
Mr. MacDonald also engaged with GCStrategies on another agency project involving Montreal software company Botler. That project was not connected to ArriveCan, but involved three ArriveCan contractors who have all since been suspended from federal contracting: Coradix Technology Consulting Ltd., Dalian Enterprises and GCStrategies.
ArriveCan’s main contractor GCStrategies paid without ensuring work was done: A-G
The Globe reported in 2023 that Botler had made a complaint to the agency leadership that warned senior officials about improper contracting practices and cozy relationships between the public service and private firms. Botler’s complaint said Mr. MacDonald directed the company to work with Kristian Firth, managing partner of GCStrategies.
In court records and before parliamentary committees, Mr. MacDonald has maintained he has done nothing wrong.
In response to Botler’s complaint, the CBSA referred the matter to the RCMP, which launched an investigation. The RCMP has not announced a conclusion to that investigation.
The CBSA also launched its own internal investigation, which led to a report described as a preliminary statement of facts.
That report has not been made public, but it was shared privately in early 2024 with members of Parliament on the House of Commons committee on government operations.
Majid Jowhari, who was a Liberal MP and committee vice-chair at the time, described the contents of the report as “scary.” He declined to elaborate.
Since then, Mr. MacDonald has made legal attempts to have the CBSA’s investigation suspended and replaced by an independent review. Mr. MacDonald has argued in court that the CBSA’s investigation has been biased, procedurally unfair and a form of retribution because he criticized his former superiors at a parliamentary hearing. As part of that legal process, he entered the final draft report into court and both sides agreed to a sealing order.
Mr. MacDonald’s lawyer, Chris Spiteri, said in an e-mail Wednesday that the court’s decision confirms there’s a serious issue as to whether the agency’s investigation was biased and unfair.
“From the outset, we have said CBSA acted deliberately to punish and discredit him for exposing who really selected GCStrategies. Unfortunately, using investigations to silence and discredit has become routine,” he said. “Mr. MacDonald does not seek to avoid an investigation; he welcomes one that is fair, independent, and not controlled by the same organization trying to shield its executives. We are confident that when the facts are properly examined, CBSA’s unfair treatment of Mr. MacDonald will not stand.”
Mr. MacDonald was initially suspended in connection to the investigation and had his security clearance revoked, but the judge states in his ruling that “it appears from the record” Mr. MacDonald has successfully grieved these suspensions.
The ruling indicates that the CBSA provided Mr. MacDonald with a draft copy of the workplace investigation report on Feb. 11.
On Feb. 28, Mr. MacDonald requested a judicial review of the decision to disseminate that report pending the outcome of the judicial review and/or the completion of an independent investigation.
The ruling states that Mr. MacDonald’s position is that “the investigative process leading to the report was procedurally unfair leading to a ‘fundamentally flawed and prejudicial’ report. Further, he says the report itself is unreasonable.”
Investigation: Beneath ArriveCan
The judge points out that this week’s decision does not comment on the merits of Mr. MacDonald’s allegations related to the investigation.
He states that the underlying facts in the case are heavily contested and that “the allegations each side makes against the other are most serious.”
In granting the request to have the report sealed, Justice Brown wrote: “In my respectful view, the applicant has established he would face irreparable harm to his professional reputation if the report is distributed or disseminated prior to the disposition of his application given the seriousness of his allegations of bias and procedural unfairness in the investigation process...”
The ruling said Mr. MacDonald said there would be no significant consequences to the government if it waited “another few months” before sharing the report.
The government responded, according to the ruling, that there should not be a delay “because there is a public interest in effective regulation of public servants, which must be considered.” The government also said that an injunction would interfere with the agency’s public disclosure obligations.