Bill C-461 (Historical)

CBC and Public Service Disclosure and Transparency Act

An Act to amend the Access to Information Act and the Privacy Act (disclosure of information)

This enactment amends the Access to Information Act to provide that the Canadian Broadcasting Corporation may refuse to disclose any information requested under that Act if the information is under the control of the Corporation and the disclosure would reveal the identity of any journalistic source or if the disclosure could reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.
It also amends the Privacy Act to specify that certain information is not personal information for the purposes of that Act.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Rathgeber.

That brings your appearance before the committee today to a close. Thank you again for coming back a second time.

We will now move on to the second item on our agenda, which we will discuss entirely in camera, in a couple of minutes.

Just before that, I would like to remind everyone that tomorrow is still the deadline to provide the clerk with amendments to Bill C-461, by 9 a.m. We will consider them on Wednesday, as part of our clause-by-clause study.

I will now suspend the meeting for a few moments, just long enough to switch to the second item on our agenda.

Did you have something to add, very quickly, Mr. Rathgeber?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

No. As I said in my opening comments, Mr. Chair, it's certainly the intent of the bill that bonuses, which can be as high as 39%, should be disclosed. The specific “salary” is the word that Bill C-461 uses. Members of the committee might want to think about an amendment to make it clear that the word “salary” includes bonuses, or they might want to just say “salary and bonus”.

I'm not sure if it's clear enough, but I can tell you that as the author of the bill it was my intent that both specific salaries and specific bonuses be subject to disclosure. Based on reflection, I'm not entirely convinced that the words “specific salary” are broad enough to encapsulate maximum performance awards or bonuses.

[Chris Warkentin, Conservative, Peace River, AB]

It seems as though the CBC says that it provides detailed information about its spending, program strategies, and operations to the broadcast regulator, which is the CRTC. Currently, some of that information is made public by the commission, but journalistic programming and creative material is excluded. They go on to say that BillC-461 limits the ability of the head of CBC/Radio-Canada to withhold information. They are concerned that the CRTC would no longer be able to withhold confidential information provided by CBC.

They're saying that the provisions of withholding are vested with CBC's personnel and don't extend to the CRTC, so it's basically a way of circumventing the process. I say this because according to your amendment, the head of CBC would be responsible for withholding this information.

Economic Action Plan 2013 Act, No. 1

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, New Democrats oppose Bill C-60 both with regard to the process and with regard to the content. This is another example. The bill is 115 pages and will make amendments to 49 different pieces of legislation. Of course, a bill of that scope and magnitude deserves thorough examination by members of Parliament.

Because of the time allocation imposed on the bill at both second reading and report stage and because of a very unsatisfactory process when the bill was before committees, the House has not had an opportunity to study the bill in the kind of depth it should be studied.

Part of the concern is that this budget implementation bill would do a number of things. First of all, it would raise taxes on Canadians by introducing tax hikes on credit unions and small businesses in addition to hiking tariffs on thousands of products that were announced in the budget.

It would give Treasury Board sweeping powers to interfere in free collective bargaining and impose employment conditions on non-union employees at crown corporations. It would amalgamate the Department of Foreign Affairs and International Trade and the Canadian International Development Agency with no reference to the ODA Accountability Act regarding the purpose of aid.

It would amend the Investment Canada Act to dramatically reduce the number of takeovers subject to review and introduce new rules regarding foreign state-owned enterprises. It proposes an inadequate Band-Aid fix for the flawed approach to labour market opinion in the temporary foreign worker program and proposes to increase fees for visitor visas for friends and family coming to visit Canadians. It would push ahead with work on a national securities regulator instead of working consensually with the provinces, and it would remove the residency requirement for committees of directors for financial institutions such as banks and life insurance companies.

People in my riding of Nanaimo—Cowichan pay close attention to pieces of legislation before the House, and I have had a number of concerns raised. One of them that I mentioned was the amalgamation in the Department of Foreign Affairs and International Trade.

This is an example of an email sent to me by a constituent. This person said:

I am a constituent in your riding and a concerned citizen who cares about efforts to end global poverty and promote human dignity.

For the past 45 years, the Canadian International Development Agency (CIDA) has supported the work of Canadian organizations involved in international development. Thanks to this collaboration, they have made a tremendous contribution in supporting the efforts of poor communities gain access to education and healthcare, ensuring food security, and promoting human dignity.

We have seen the results of this good work and I want Canada to remain as engaged as I am.

I am asking you to ensure that CIDA's mandate of poverty reduction and promoting human rights remains central, and that sufficient resources will be allocated to fulfill that mandate.

I also want to ensure that the many Canadian organizations, which have an excellent track record in responding to the needs of the poor, will remain key partners of the Government in its actions to end global poverty.

That is just one example of the kinds of concerns that have been raised by my constituents with regard to proposed changes in the bill. That particular amalgamation of CIDA with foreign affairs is an important matter that should have an independent review and not just be rammed through in an omnibus piece of legislation.

Another one, on which I received literally over 1,000 emails, is the CBC. On Vancouver Island, CBC is a much-loved institution. For years, islanders fought for a CBC presence on Vancouver Island. Finally, a number of years ago, we ended up with CBC Victoria. In a recent survey, CBC Victoria was one of the most-listened-to radio stations in the morning. That speaks to the way people see the CBC on Vancouver Island and in my riding.

The bill threatens to make some changes. In this connection I want to refer to a letter of May 23 that was sent to the Prime Minister. It was signed by dozens of people, including academics and so on. They said:

Dear Prime Minister:

We express deep concern about a proposal on pages 108/109 in Bill C-60 that would undermine the arms-length relationship between the CBC, our national public broadcaster, and the federal government.

The Broadcasting Act states that the CBC “shall, in the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence”.

As you know, this statement places the CBC on a par with its counterparts in other free and democratic countries. It is what makes the CBC a public broadcaster - as opposed to a state broadcaster. Independence from governmental interference is the key distinction between the two - throughout the world.

Bill C-60 proposes to amend the Financial Administration Act to permit the government to set the mandate for and audit CBC's collective bargaining as well as give the government a veto over CBC's collective agreements. This means that the government would become the effective employer of CBC's personnel, including its journalists, producers and story editors.

Such powers would intrude into CBC's independence well beyond it employee's compensation. Conditions of work are an integral part of CBC's collective agreements with its various employee groups. Such conditions currently provide assurance of the integrity of CBC as an independent national public broadcaster, as required under the Broadcasting Act.

For example, conditions of work in the CBC's collective agreements ensure that:

Journalists cannot be pulled off assignments without good reason.

Journalists do not have to fear retribution, including loss of employment, as a result of reporting the news.

CBC is required to protect the authority of producers over the content, form and budget of a program.

Producers cannot be removed from a program without justification, and they have the right to refuse to produce a program if they do not agree with its content or form.

Were Bill C-60 to pass without amendment, any government could change such provisions in its own interest--at great cost to Canadian democracy.

The federal government already has more than ample influence over CBC through appointment of its CEO and board of directors, and the allocation of its federal grant.

We therefore urge in the strongest terms that Bill C-60 be amended to remove all references to the CBC.

As I mentioned, that is the full text of the letter that was sent to the Prime Minister on May 23.

The New Democrats did attempt to amend Bill C-60 by putting forward a motion that would have seen the references to CBC carved out of the bill, introduced as a separate bill in the House of Commons and then we would be able to have a full debate on it. Unfortunately, the Conservatives did not agreed to those amendments.

As I mentioned, I have received over 1,000 emails on this matter. These are a couple of examples.

One person wrote:

The CBC must be independent from the government. That is why I object to the government taking control of the lion's share of the CBC's budget. The Prime Minister should not have direct control of the salaries and working conditions of CBC journalists and creative staff. I do not want any politician exercising such control over our national public broadcaster. I urge you to abandon this plan.

Another person wrote:

I am writing to object to the proposal to undermine the CBC's editorial independence contained in Budget Implementation Bill C-60. No public broadcaster anywhere in the free world faces the degree of political interference that is proposed for the CBC in Bill C-60. This Bill would give the government the opportunity to turn the CBC into a political propaganda machine rather than a public broadcaster. For the sake of our country and our democracy I urge you to work to have provisions concerning the CBC removed from Bill C-60.

That is just a small sample of the emails that came in.

I also want to touch on another aspect with regard to Bill C-60 and the importance of maintaining that journalistic independence. In a column I wrote recently, I was referencing an organization called Reporters without Borders. It is responsible for issuing the press freedom index.

It indicated that Canada had fallen from 10th to 20th place. This report states that Canada is now behind Costa Rica, Namibia and Lichtenstein. The RWB has blamed the Conservative government's action and incessant attacks on the journalistic principles of anonymous sources for the slip in the ranking.

This is evidence of the kinds of concerns that have been raised by my constituents and thousands of people across Canada.

We have also seen another attack in another bill that is a private member's member before the House, Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information), and would put some further restrictions on CBC's abilities to operate independently.

Sadly, with the budget implementation bill, we have seen an effort to shut down parliamentary debate. The efforts to curb CBC's journalistic independence is just another example of the lack of transparency and accountability that the government continues to demonstrate through its various pieces of legislation that it has rammed through the House.

I encourage all members to vote against Bill C-60 and ask the government to bring back a bill and a process that allows us to fully debate such legislation that would have such far-ranging effects.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and honourable members.

I am pleased to reappear before the House of Commons Standing Committee on Access to Information, Privacy and Ethics to answer further questions on my private member's bill C-461.

Bill C-461, the CBC and public service disclosure and transparency act, attempts to bring greater transparency to the Canadian Broadcasting Corporation and to salary disclosure in the federal public service generally.

As you know, your committee meetings have to some extent been derailed and interrupted by motions and several unscheduled votes in the House of Commons. Accordingly, I am pleased that the committee has shown interest in this legislative proposal and scheduled extra meetings to properly assess and vet this important legislative initiative.

Mr. Chair, with your consent, I would like to briefly summarize the evidence that the committee has heard thus far, and then I will take any questions the members might have.

Members, what you have not heard as evidence is as telling and as interesting as what you have heard. For example, not a single witness has supported the government's dubious proposition that the benchmark for specific salary disclosure for federal public servants should be raised to $329,000. Both the National Citizens Coalition and the Canadian Taxpayers Federation have testified that the proposed benchmark of DM-1 or $188,000 is too high and ought to be lowered to $100,000 to mirror Ontario's sunshine list.

Moreover, although the CBC and the journalist guilds oppose the provisions that allow the Information Commissioner to review access decisions of the CBC based on a prejudice or injury-based test, neither of them expressly supports the government's signalled intent to introduce an amendment providing for an exclusion for journalistic source documents.

The Information Commissioner meanwhile is firmly opposed to the prospect of another exclusion to replace the currently much-maligned exclusion in section 68.1 of the Access to Information Act. She seemed incredulous that the government would replace an exclusion subject to an exception with a discretionary exemption thereafter subject to an exclusion. Clearly this would constitute, to use the words of the Federal Court of Appeal, “not a model of clarity...[and a] recipe for controversy”, all of which Bill C-461 is designed to prevent.

Moreover, the Information Commissioner reiterated that journalistic source privilege has never been raised—not a single time—in a dispute between the CBC and someone seeking documents, and that journalistic source privilege, according to the Supreme Court of Canada in Regina v. National Post, is not absolute and must be examined on a case-by-case basis to determine its applicability.

Finally, and this is important, Mr. Chair, as personal information is exempt from disclosure pursuant to the Privacy Act, concerns that names of confidential sources will somehow be disclosed to the public through access requests are entirely unfounded.

We did, however, hear some interesting evidence that could prove helpful. I would ask the committee to consider amendments that will ultimately improve this legislation.

There has been some admittedly credible evidence that Bill C-461's attempt to protect the independence of the public broadcaster is inadequate and will lead to excessive disclosure. Perhaps. However I remain convinced that excluding documents merely relating to activities is much too broad and has led to such questionable results as CBC's refusal to release how many vehicles are contained in its vehicle fleet.

It has been suggested that freedom of expression could be added to independence to provide a greater comfort level. I would support that, provided the Information Commissioner is allowed to review contentious decisions to ensure the protections and exemptions are being applied appropriately.

As indicated, both the National Citizens Coalition and the Canadian Taxpayers Federation have testified that the salary disclosure benchmark of $188,000 is too high and ought to be lowered to $100,000. I agree with their first submission but suggest that $160,000 is a more realistic benchmark. As members know, $160,000 is the approximate salary of a member of Parliament. Although any chosen benchmark will be arbitrary, I would submit that an MP's salary is as defendable as any other proposed benchmark would be, because Parliament would be requiring no greater disclosure from federal public servants than its own members are subject to.

A related issue, Mr. Chairman, is the use of the words “specific salary” in Bill C-461. It is uncertain whether the term “specific salary” includes the up to 39% performance variances, otherwise known as bonuses, that the top mandarins may be entitled to. It is certainly the intent of the bill that such bonuses be disclosed. Accordingly, the committee may wish to consider an amendment to clarify that all executive compensation, that is salary and bonuses, ought to be subject to access to information requests.

Finally, what hadn't occurred to me until I heard the Information Commissioner last Wednesday was that she believes that the transition provisions contained in the current version of Bill C-461 are inadequate, as rejected applications for disclosure might subsequently be resubmitted under the new, more transparent rules. The current wording of Bill C-461 suspends operation for 90 days to allow there to be a mechanism to deal with applications that are in the queue.

But she's quite right that if the rules change, rejected applications for access could simply be resubmitted. So she advised that it be made expressly clear that all under-review matters be adjudicated under the new rules to prevent resubmissions.

Mr. Chair, I am pleased with the totality of the evidence presented to this committee and the divergent opinions on what is and what is not appropriate access to information held by government. These are important matters and I did not expect the witnesses to be unanimous. However, debate and discussion is necessary as Canada attempts to modernize its clearly outdated access to information legislation.

I trust that upon reflection, members of this committee will reject proposed amendments that remove Bill C-461's attempts to achieve greater transparency, but will adopt and approve amendments that clarify and strengthen Canadians' rights of access to information held by their government.

Thank you, Mr. Chair. I look forward to the questions by committee members.

[The Chair, NDP, Pierre-Luc Dusseault]

Good afternoon, everyone.

We will now begin the 83rd meeting of our committee.

During our first hour, we will be continuing our study of Bill C-461. We have with us Mr. Rathgeber, the member who sponsored Bill C-461. We ran out of time when Mr. Rathgeber was last here, and the committee wanted to invite him to appear again. First, he will spend a few minutes making his statement, and then the committee will have a chance to ask questions, as usual.

I will now hand the floor over to Mr. Rathgeber, so he can make his presentation.

Please go ahead, Mr. Rathgeber. And thank you for joining us again.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Warkentin. Your time is up, unfortunately.

That brings us to the end of the meeting. Since we only have about 30 seconds left, we will not have time for another question.

I would like to thank you once again for being here and for sharing your comments with us on Bill C-461. Hopefully, this was useful for the members of the committee.

Thank you.

The meeting is adjourned.

[Scott Andrews, Liberal, Avalon, NL]

Mr. Taylor, when Stephen Harper was president of the National Citizens Coalition, if a matter became before Parliament, wouldn't he be calling for more accountability and more openness and transparency, as is in Bill C-461?

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you.

I would like to remind Mr. Andrews once again that his question has to stay on the topic of Bill C-461. Otherwise, I will have to give the floor to the next person on my list.

I am not telling you what questions to ask; I am simply asking you to limit them to the context of the bill. I am giving you one last chance, Mr. Andrews.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you for your comment. I was just going to remind you that we need to stay as close as possible to Bill C-461 and its spirit.

Mr. Andrews, could you make sure as much as possible that your question has to do with Bill C-461? We must not go off in all directions by talking about topics that are not related to the spirit of the bill before us.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Mr. Chair, could we stay on the subject matter, which is Bill C-461? This is not in order, and I don't think it's fair to the witnesses that they should be answering these questions. They came here to discuss Bill C-461. Let's stay on that topic.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Along those lines—and I'll ask both of you—do you really feel there needs to be a distinction between general information and the journalistic source? Do you firmly believe that the journalistic source needs to be protected, and do you think Bill C-461 does that? Or do you not think it needs to be protected?

[Gregory Thomas, Federal Director, Canadian Taxpayers Federation]

Thank you, Mr. Chair.

I would like to thank you all for allowing me to join you today. I'd also like to thank Brent Rathgeber for proposing Bill C-461. Mr. Rathgeber has shown character and courage in standing up for his beliefs and to his caucus when he has nothing to gain politically or personally by supporting this bill. This is evidence that principles are still alive and well in the House of Commons, and this gives us at the Canadian Taxpayers Federation hope that this bill will lead the government in the right direction.

My name is Gregory Thomas. I am the federal director of the Canadian Taxpayers Federation. We are a federally incorporated, not-for-profit citizens' group dedicated to lower taxes, less waste, and accountable government. We represent over 84,000 supporters across Canada. I am here on behalf of our Taxpayers Federation and our supporters to defend the current iteration of Mr. Rathgeber's bill.

We believe that all governments should stick to their founding tenets: transparency and accountability to the people. When administrations base their governments on these two seemingly simply ideas, it benefits them, their supporters, and everyone in between. More accountability to the public gives taxpayers the rights they deserve—to know who is being paid with their tax dollars and how much of our money they receive.

Bill C-461 would cause the government to disclose all earnings above $188,000. We believe this is a necessary shift in federal disclosure policy. Although in a perfect world every penny paid out by the government would be public information, we believe Mr. Rathgeber's bill pushes the government away from its self-imposed opaqueness and pushes the government into disclosure policy that will greatly benefit all Canadians.

This bill in its current state, we feel, does not go far enough, but the enthusiasm and hard work put in by Mr. Rathgeber makes up for this and gives us hope that other MPs will push for further reforms in the future. That being said, there have been criticisms of these amendments from all sides of the House, and I would like to address each of them.

First, there is concern regarding the number of people who would land above the $188,000 salary disclosure limit. Their concerns have centred on the number of people whose salaries would be disclosed. We believe this is a non-issue in this discussion. Government employees are all accountable to the public precisely because we sustain their salaries. To suggest otherwise takes away from the real issues affecting Canadians: government accountability and transparency.

We hear this from the government, and, quite frankly, it confuses us. I'm not the first one, nor will I be the last, to reference the current Senate expenses scandal involving former Conservatives Mike Duffy, Pamela Wallin, Patrick Brazeau, and former Liberal Senator Mac Harb. If the government allowed us access to the records and documents relating to their expense claims, this wasteful, unaccountable spending could have been nipped in the bud before it spiralled out of control into a $90,000 cheque with many reputations tarnished.

The same will go for this bill. If we see what government employees are earning, we can stop unreasonable salaries, benefits, and pension entitlements before they spiral out of control. It should be clear that this would help any government avoid embarrassment and scandal, while ensuring taxpayers are being treated with the respect they deserve.

The other major criticism relates to the effects of this bill on the Canadian Broadcasting Corporation. Again, we believe this takes away from the real issues surrounding the amendments. The CBC is not the only affected crown corporation. All crown agencies, from the Atlantic Pilotage Authority to VIA Rail, are covered in this bill. In fact, there is a specific provision in this bill that would allow the CBC to withhold information that threatens its independence, and it would be subject to a test that could be tried in the courts.

We believe there are plenty of members in the official opposition, as well as the Liberal Party, who genuinely support the spirit of this legislation. I would simply plead with you not to get caught up in the sideshow that relates to the CBC, but rather focus on the real issue, which is accountability, transparency, and waste.

Now, you may be asking yourself, how exactly does federal disclosure policy help the average taxpayer, the average citizen? The fact of the matter is this: if we can see what crown CEOs are making and what their job descriptions are, we can avoid potential scandals before they spiral out of control.

You may believe that not every Canadian pays attention to the salaries of government officials. It's a valid assumption, and I don't deny it. However, we still owe it to taxpayers to treat their dollars with dignity. Even if every Canadian on every main street isn't going to file an access to information request, you can be assured that the Taxpayers Federation, as well as other advocacy groups for free press or free media, will be watching vigilantly to see how taxpayers' dollars are spent.

We're here to ensure that the government operates within reasonable limits. The day we stop respecting a person's money because they don't have the time or resources to be involved in the same manner you are, I believe, is the day we lose our moral authority to levy taxes.

I hope my testimony has shed some light on this issue. Canadians deserve the best from their government, and we believe the public's concerns, until this bill arrived, have been falling on deaf ears.

We commend Mr. Rathgeber and all members who support this legislation. You are the people who listen to Canadians and who are working for positive change in the stewardship the government shows over our tax dollars.

[The Chair, NDP, Pierre-Luc Dusseault]

I call the committee back to order. We are continuing our meeting to study Bill C-461. Two new witnesses are taking their places at the moment.

First, we welcome Mr. Gregory Thomas, who is the Federal Director of the Canadian Taxpayers Federation, and Mr. Stephen Taylor, Director of the National Citizens Coalition.

According to our agenda, Mr. Thomas and Mr. Taylor will both have 10 minutes in which to make their presentations. Questions and answers in seven-minute periods will follow and will continue to the end of the meeting.

Mr. Thomas, thank you for joining us. Without further delay, you may take the floor.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Great.

My second motion is somewhat along the same lines, but I think that you have just agreed to my request. I move that the committee extend its study of Bill C-461 in order for us to invite Brent Rathgeber, the sponsor of the bill, to appear before the committee again before we start clause-by-clause study of his bill.