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.

CBC and Public Service Disclosure and Transparency Act

[The Speaker, Conservative, Andrew Scheer]

The House now seems faced with what seems to be an unprecedented situation. Since the two hours of debate prescribed for report stage and third reading have concluded and the report stage motions have been disposed of, all questions necessary to dispose of the bill should now be put immediately to the House, pursuant to Standing Order 98(4).

However, the sponsor of the bill, the hon. member for Edmonton—St. Albert, has indicated that he does not wish to move the motion to concur in the bill as amended at report stage. Members will recall that pursuant to Standing Order 94, the Speaker may make all arrangements necessary to ensure the orderly conduct of private members' business.

Accordingly, I rule that the order for concurrence at report stage of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be discharged and the bill be dropped from the order paper.

(Order discharged and bill withdrawn)

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

Mr. Speaker, as Motions Nos. 1 to 8 have all failed, the bill in its current form bears no resemblance to the original Bill C-461 and represents neither public service disclosure nor transparency as the now misnomer title would suggest. Accordingly, the sponsor of the bill does not move concurrence.

The House resumed from February 13 consideration of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), as reported (with amendments) from the committee, and of the motions in Group No.1.

Public Service of Canada

[Jasbir Sandhu, NDP, Surrey North, BC]

Mr. Speaker, I rise today on behalf of my constituents in Surrey North to speak to Bill C-461, the CBC and public service disclosure and transparency act. Bill C-461 is a blatant attack on the CBC's ability to remain competitive and independent, which the Conservative government has tried to cloak with language of “transparency”. The Canadian public will not be served by the changes proposed by this bill. The only beneficiaries will be CBC's competitors.

How can the federal government, while demonstrating a trend toward greater secrecy and less transparency, ask for exactly the opposite from everyone else? In a stunning display of hypocrisy, the Conservatives continue to demand near limitless disclosure from first nations, labour unions, and now the CBC, while they simultaneously refuse to disclose the number of employees in the PMO who earn over $100,000.

If the Conservative government were truly interested in transparency, it would have supported the original salary disclosure measures in this bill. Instead, during the ethics committee's study of the bill, the Conservatives gutted these provisions by raising the minimum income threshold for full salary disclosure of federal employees from $188,600 to $444,661 annually. This amendment they introduced at committee was designed to effectively neutralize Bill C-461's salary disclosure measures, and rather than supporting transparency, as the name of this bill suggests, the Conservatives are doing exactly the opposite. By gutting the salary disclosure provisions proposed in this bill, the Conservatives are yet again demonstrating their aversion to any measure of true transparency.

I am sure Canadians are wondering why the Conservatives voted to raise the salary disclosure threshold. There must certainly be a valid rationale behind this particular decision. I am sorry to disappoint Canadians searching for this answer. There should be a reasonable explanation from the government, but there does not seem to be one. In fact, the federal director of the Canadian Taxpayers Federation noted that not a single witness nor committee member even spoke to why increasing the threshold was a good idea. I have to say that I agree with the director's prediction that this was probably because the Conservatives could not think of even one good reason to justify their action.

The Conservatives are demonstrating that they are nothing if not consistent in this position. Over the past few months, we have seen in the House their attempts at evasion and cloaking the truth. Even independent transparency experts have criticized the government for its deteriorating commitment to transparency. How can we be expected to work toward transparency when the government is unable to set a good example of what that should look like? Why should we settle for transparency for everyone except the Conservatives? On this side of the House, we believe in a regime of transparency and accountability that applies fairly to all aspects of the federal government. This is clearly not a view shared by my colleagues across the aisle.

I am sure we can all agree that it is of the utmost importance that the CBC remains accountable to Canadians. However, it is also important that CBC be able to protect its journalistic programming and creative activities in order to perform and deliver in this marketplace. This bill would make protection of that information significantly difficult and would threaten CBC's competitiveness and ability to produce investigative journalism.

It is important to acknowledge, first of all, that the CBC has taken measures to improve its access to information operations dramatically. In fact, the information commissioner remarked in her 2011-12 report cards that CBC had “achieved an outstanding level of compliance” and awarded the CBC an A grade for its performance under the Access to Information Act.

Furthermore, the CBC proactively discloses information to the public beyond what is required. The CBC's improvement in this area is even more impressive when compared to the federal government's own appalling performance in this regard.

The amendments in this bill would repeal the exclusion from the Access to Information Act of CBC's information that is related to journalistic, creative, and programming activities, and instead replace it with an exemption. Under this exemption, the CBC would be required to demonstrate that the disclosure of a record would be reasonably expected to prejudice the corporation's journalistic, creative, and programming independence.

Currently the Office of the Information Commissioner of Canada reviews the requested documents to ensure that the information relates to protected activities, and then makes a decision. Under the proposed exemption, the CBC would be required to turn over documents, as well as legal arguments, outlining how the release of the information would cause injury to the CBC.

This would place an undue and unfair burden on the CBC and would open a door to damaging requests, as well as needless and expensive legal battles. There is no other broadcaster that is subject to similar measures.

It is clear that these amendments would seriously threaten the CBC's journalistic operations. The majority of the CBC's access to information requests already come from its competitors. These amendments would only serve to exaggerate the situation and force the CBC to spend more time and effort protecting information relating to journalistic, creative, and programming activities from its direct competitors.

Why would we want to expose our public broadcaster to this extra burden, which would seriously threaten its competitiveness? These amendments are unnecessary. The CBC has already demonstrated excellent compliance with the Access to Information Act, and the Federal Court of Appeal has already settled the matter to the satisfaction of both the Information Commissioner of Canada and the CBC. There is absolutely no need to place an additional burden on CBC, our public broadcaster.

At the risk of sounding like a broken record, I must point out the hypocrisy of this bill. How is that the Conservatives can expect the CBC to adhere to an even more demanding access to information procedure when they are not performing to the level that CBC is? This is truly perplexing to me.

This bill is a backdoor attack on the CBC, targeting its ability to remain competitive and independent. The Conservatives have demonstrated, with their amendments to the bill, that they are not committed to ensuring transparency on salary disclosure.

I agree that the CBC must remain accountable to Canadians, but this bill would hinder its ability to protect journalistic, programming, and creative activities, which would negatively impact its ability to perform and deliver in the marketplace. I believe that the CBC should remain a strong and independent public broadcaster. The bill demonstrates that the Conservatives clearly do not feel the same way.

[Costas Menegakis, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I am pleased to have this opportunity to speak on the subject of Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information). The bill was introduced in the House on November 5, 2012, by the member for Edmonton—St. Albert, and it has been the subject of numerous debates.

The bill was referred to the House from committee for third reading debate. Shortly before the debate took place, the member for Edmonton—St. Albert tabled eight motions to amend the bill as adopted in committee and as reported to the House on June 6, 2013. Today I wish to speak to these motions.

It is important to recognize that these motions fundamentally alter the state of Bill C-461. They would remove everything related to the records of the Canadian Broadcasting Corporation. These motions not only fundamentally alter the state of Bill C-461 as amended by the Standing Committee on Access to Information, Privacy and Ethics but also go against what the member for Edmonton—St. Albert originally proposed for Bill C-461.

The bill initially proposed to amend the Access to Information Act and the Privacy Act to make most of the CBC's information accessible under these acts. This was an important component of Bill C-461.

At that time, the bill proposed to change the treatment of the CBC's records to be in line with the recommendations made by the ethics committee during its study of section 68.1 of the Access to Information Act. Section 68.1 is the ambiguous and confusing exclusion currently applicable to the CBC. This is the provision that the Federal Court of Appeal described as “a recipe for controversy” in paragraph 69 of its decision in 2011 FCA 326, the case of the CBC v. the Information Commissioner of Canada.

The government will oppose all eight motions presented by the independent member for Edmonton—St. Albert and will ask that Bill C-461 be voted on in the state in which it was when it was referred to the House on June 6, 2013.

I will now speak on each motion separately.

Motion No. 1 would modify the long title of Bill C-461 to remove the reference to the Access to Information Act. Based on this motion, the title would now read “An act to amend the Privacy Act (disclosure of information)”. The motion goes against what the member from Edmonton—St. Albert originally proposed for Bill C-461 and against what was approved in committee. The approved version proposed to amend the Access to Information Act and the Privacy Act to make most information under the CBC's control accessible under both of these acts.

Motion No. 2 would modify clause 1 of the bill—that is, the short title of Bill C-461—by removing the reference to the CBC. With this motion, the short title of the bill would read “This Act may be cited as the Public Service Disclosure and Transparency Act”. Again, this motion goes against what the member for Edmonton—St. Albert originally proposed for Bill C-461 and what was approved in committee. Bill C-461 was originally about increasing transparency of the CBC by removing the broad exclusion that applied to it.

The government will oppose both of these motions, as they fundamentally modify Bill C-461.

Motion No. 3 proposes to delete clause 2 of Bill C-461 and thus remove the proposed injury-based exemption, which would relate to how records of the CBC are to be treated under the Access to Information Act. I will remind the House that the bill originally introduced by the member for Edmonton—St. Albert proposed this injury-based exemption.

As a result of this, repealing the current ambiguous exclusion available to the CBC—that is, section 68.1 of the Access to Information Act—would no longer be viable. That is reflected by Motion No. 4, which would delete the relevant section of Bill C-461. The effect of these two motions would be the continuation of the status quo for the CBC.

The effect of these two motions would be the continuation of the status quo for the CBC. The Access to Information Act would not apply to information under the control of the CBC that relates to its journalistic, creative, or programming activities, other than information that relates to its general administration. This ambiguous exclusion would remain and the public would be prevented from getting access to much of CBC's information.

As I have indicated, the government will oppose these motions.

Motion No. 5 would amend clause 4 of Bill C-461 by modifying the categories of personal information that could be disclosed by government institutions respecting their employees or officers, and the threshold for doing this. The new proposed threshold would be based on the sessional allowance payable to a member of Parliament.

Members have already debated what information should be disclosed under the Privacy Act. The bill was amended to reflect what the government considers necessary to promote more transparency at a certain level of the public administration.

The government will oppose this motion, as it alters Bill C-461.

Motion No. 6, would delete clause 5 of Bill C-461 and would therefore remove the proposed injury-based exemption, which would relate to how records of the CBC are to be treated under the Privacy Act. Here again, I will remind the House that the bill originally introduced by the member for Edmonton—St. Albert proposed this injury-based exemption.

The government will oppose this motion, as it modifies the essence of Bill C-461.

Motion No. 7 would delete clause 6 of the bill, which provides for an exclusion for personal information under control of the CBC that would reveal the identity of any confidential journalistic sources, and for personal information that the CBC collects, uses, or discloses solely for journalistic, artistic, or literary purposes.

The government amended the bill in committee to add an exclusion for any information under the control of the CBC that would reveal the identity of any confidential journalistic sources. The government strongly believes that the confidentiality of journalistic sources is a fundamental aspect of journalism, and we do not want to place the CBC at a disadvantage compared to private sector broadcasters.

The government will therefore oppose this motion, as it alters Bill C-461.

The effect of Motion No. 8 is that the status quo would remain for the CBC with respect to access to its personal information. The Privacy Act would continue to not apply to personal information that the CBC collects, uses, or discloses solely for journalistic, artistic, or literary purposes.

The government will oppose this motion as it modifies Bill C-461 in a fundamental way.

I am grateful for this opportunity to speak on these motions amending Bill C-461. As noted at the beginning, our government will oppose all eight motions presented by the member for Edmonton—St. Albert, and we ask that Bill C-461 be voted on in the state that it was referred to this House on June 6, 2013.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the NDP will support the amendments to Bill C-461, but if they were not made, we would vote against the bill.

What can be said about this bill, which is typical of his government? What the government is doing is in fact exactly the opposite of what one might expect from the bill's title. It was supposed to address government transparency, but that is not what we got.

The bill was to require all direct or indirect employees of the government to disclose their salary if it was over $188,600. In order not to have to reveal what it was paying its special advisors, its numerous consultants and the employees in the Prime Minister's Office, the government increased this amount to $444,661. This is completely crazy.

The bill, which was introduced by a member who was a Conservative at the time, was essentially about transparency. Taxpayers are entitled to know how much people are being paid out of their tax dollars, particularly if their salary is more than $188,600.

You can be for or against this measure. However, in order to hide its use of the machinery of government for personal purposes, the government increased the amount to $444,661. Incredible. It is certainly indicative of this government's attitude.

The bill also imposed a number of restrictions on the Canadian Broadcasting Corporation, on the grounds that the CBC was not only an enemy of the Canadian people, but also a nasty crown corporation. Obviously the government feels that Sun News is much better and more intelligent. It is at least more conservative.

This use of government regulations for strictly personal and partisan purposes is nothing new. We have seen this in many other statutes. Private enterprise is deregulated and allowed to do whatever it wants. On the other hand, for members of first nations, the financial regulations are torture. They are far too stringent. The first nations are going to spend more time filling out government forms that working so that people in their community can have acceptable living conditions. That suits the government just fine. In the meantime, they will not be asking the government to build social housing. That is typical of this government.

It is the same story for unions. The government has spared no effort where unions are concerned. Everything has to be public, including private contracts. For example, Xerox has agreements with some unions. If a particular union asks Xerox to offer its services at a specified price, Xerox does not want another union asking it to lower its prices as well.

Once again, the government wants to cut spending with this anti-union legislation. The private sector can establish any company in any way. For a worker who wants to unionize, it is becoming difficult. Moreover, it is easy for the management to challenge the union certification of that worker.

Let us also not forget environmental groups, because all environmentalists are being targeted by this government.

Indeed, these groups are dangerous. They question the fact that the government is unable to reduce greenhouse gas emissions. Needless to say, that is not working.

Yesterday, we saw a surprising bill that can be legally challenged and is highly questionable from a moral point of view. It concerns officers of Parliament, who must now disclose their political past for the last 10 years. As far as I know, though, people in this country are still entitled to their own political opinion. They have the right to vote for whoever they want. This government does not seem to agree. Let us get back to this issue.

To say that this shows that the government has been in office for too long and the Prime Minister's Office—which is already struggling with many ethical issues—is not really interested in transparency is stating the obvious. This bill is not about transparency; it is about control. What the government wants is to allow private companies to acquire a non-competitive power against crown corporations such as the CBC.

We will talk about this later on, but that is the real goal. With its partisan approach, this government sees the CBC as an opponent. Of course, it is using this bill to do the opposite of what it was supposed to do originally, which was to disclose the salaries of all those who earn more than a member of Parliament. It is clear that the Prime Minister's Office does not want this information to be disclosed, although we know the Conservatives can be more cunning than that.

Instead of paying some expenses through the Prime Minister's Office or out of the Conservative Party fund, they appoint party fundraisers to the Senate to save money and make taxpayers pay. It does not cost the Conservative Party a lot of money, they get salaried workers who run fundraising campaigns on a full-time basis for them, and they are happy about that. However, Canadian taxpayers who see this are not pleased. When we see the blunders made by some Conservatives who really embarrassed the government with the magnitude of their excesses, it is easy to see that the government had other things to deal with.

Even organizers from the private sector told the committee this did not make any sense. Conservative members of the committee did not even bother to give a single reason for these changes. This speaks volumes about this government's inability to truly defend transparency.

As with everything else, the facts are hard to challenge. On the issue of the environment, the government may claim that acid rain does not exist, or that there is no greenhouse effect, but the facts show otherwise and people notice them. As for science, the government may claim it supports science, but when all the scientists say they are tired of being monitored and not being allowed to disclose their findings, again the facts are hard to challenge. In the case of the census, everyone told the government not to go ahead with its plan, but it did nevertheless. Now, Canada's censuses can no longer be used to anticipate medical services that should be developed in the future. For the Conservatives, climate change does not exist. People in Texas who are coping with a snow storm must really be having a good laugh. As for the CBC, the Conservatives are essentially saying that the corporation is not a problem.

There is nothing worse for a liar than the facts and the truth. We are going to support the amendments and this point of view on transparency. We are going to say yes to these amendments.

If the amendments are not adopted by the House, we will have no choice but to oppose this legislation, which is inappropriate, which is against Canada, and which does not promote transparency.

The House resumed from November 22, 2013, consideration of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), as reported (with amendments) from the committee, and of the motions in Group No. 1.

Motions in amendment

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is a pleasure to rise today to speak to Bill C-461.

First I would like to compliment the member for Edmonton—St. Albert. He has obviously made an exceptional effort to get a better appreciation and understanding of getting a bill passed through the House, which can be a challenge at the best of times, as we all know. He has identified an issue that we collectively in the House hear a lot about. In the last number of months we have heard a lot about transparency and accountability, whether in this House or the Senate chambers.

In his own way the member has identified another way that we can ensure more transparency and accountability. I very much respect that.

It is most interesting to see the original wording of the bill and where it is today, where I had the privilege to second some amendments.

I am hopeful that members will see this situation for what it is. This private member has taken an exceptional amount of time to get a good understanding of an issue and then put it forward to the House of Commons. I have been a parliamentarian for over 20 years, and one of the things that I really respect about the House is the fact that we have private members' bills. We have hundreds of them.

Sadly, less than half will actually be dealt with. I think I am right in saying they number 200 or something of this nature, and if we sit enough days, my bill might actually come before the House, but most bills will never be voted upon.

It is a privilege to be in the House. It is a great opportunity if one gets the opportunity to bring an idea before the House. I like to think that at the very least we should preserve that aspect about private members' hour. It should not be based on party policy forcing all government members to vote a certain way or all Liberal members to vote a certain way. The same applies to the New Democratic Party. This should not happen during private members' hour when we are dealing with an issue of this nature. My understanding is it is supposed to be a free vote.

In looking at the legislation and the amendments that have been brought forward, and based on what I witnessed in the second reading vote and on my understanding of the issue of transparency and accountability, I believe the bill as amended should be able to pass on merit alone.

In the procedure and House affairs committee we were talking about proactive disclosure and how we in the Liberal Party have proactive disclosure. People can click on to the net and see the cost when I have flown to Winnipeg and come back. My hospitality costs are there . It is all there to be seen. The Conservatives are not exactly sure what it is yet, but they are saying “us too”. The NDP is saying it will at some point.

Why do I say that? It is because the member for Edmonton—St. Albert has found something all of us should be supporting. There were some reservations when it came in for second reading, if memory serves me correctly. I would have voted against it going into committee. The reason for that was the CBC aspect, but the CBC is no longer a factor in it now.

One of the nice things about committee is that members are afforded the opportunity to make some changes. We should value that aspect. It is the same thing with report stage. That is an important aspect of private members' bills.

One thing we have to be very careful of—

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I really appreciated the idealistic tone of the speech by my colleague opposite. It is important for those watching us today to truly understand what has happened.

A Conservative member introduced a bill that will allow the public to find out exactly how much money all federal employees making more than $188,600 are paid. He believes that this could lead to greater transparency in the public service and government agencies. We might think that he would have the support of his party, which was elected on the promise of transparency. Despite this reassuring tone, that is not at all the case.

On the contrary, his party let the member go ahead, the bill proceeded and, when the time came, the order was given to simply torpedo the bill, just like in a game of Battleship. When the bill was studied by the Standing Committee on Access to Information, Privacy and Ethics, all the Conservative committee members calmly raised their hands, without a word of explanation, and gutted the bill. They changed the wording so that only 1% of the public service—those earning more than $444,661 a year—would have to disclose their earnings. That is an absolute farce.

My colleague, the member for Rosemont—La Petite-Patrie, who I imagine was quite baffled, suggested that we rename the bill to better reflect its content. He suggested that it be named “An Act respecting the transparency of public servants earning more than $444,000 a year, with the exception of PMO employees”. I appreciate my colleague's rigour and concern for accuracy. We must call a spade a spade.

The last few months have been very difficult for the government. There have been major missteps and blunders, which generally indicate the end of a party's reign. The evolution of the bill is itself one of the Conservatives' major blunders.

Everything that elected Conservatives say they stand for, all the principles that they claimed as their own when campaigning and wanted to defend by putting their name on the ballot and asking for their neighbour's support, the very reasons they came to Ottawa for the first time as parliamentarians and proudly took their seats, all these principles are today back on the table. They are being called into question; they have been violated. It is shameful.

I am not questioning the good faith of most of my colleagues opposite. On the contrary, I put myself in their shoes, and I wonder how they might explain what happened here to their constituents or their base. On what basis can they justify and accept the government's actions in this case? There is some cause to wonder. There are some grounds for serious doubts, right?

No, that does not seem to be the case, since the Conservative members knew that one of their own wanted to introduce a bill on the disclosure of salaries of public servants and federal agencies. This is something that many of them would have probably supported, but they knew that there was an order from above, probably from the famous little boys in short pants running around in the Prime Minister's Office. We now know that they kept a close watch on everything that was going on in Ottawa to neutralize the provisions of the bill that amended the Privacy Act in order to allow for the disclosure of salaries.

This was to be a quick and dirty job, done discreetly and swiftly. Furthermore, the member who had the thankless task of proposing amendments to gut the bill, the member for Mississauga—Streetsville, whom I have to name here, did not even bother to explain himself or defend his position. He had to know that he was doing something that did not smell quite right. He clearly did not try to draw attention to his actions.

Moreover, all the Conservative members here fell in line and voted for the amendment. That said, all this was done in silence. No member bothered to speak. There are some things you just cannot talk about.

The government loudly and constantly claims to speak on behalf of taxpayers. However, the Canadian Taxpayers Federation expressed its disgust—yes, its disgust—at the government's actions on this front.

The federation's representative, Gregory Thomas, had this to say after a close look at Bill C-461: “Not one witness, nor one committee member even spoke to why increasing the threshold was a good idea. Probably because they couldn’t think of even one good reason.”

According to him, “Canadians expect openness from the Harper government, not cover-ups and stonewalling.”

He went on to say, “This is another example where the government is not walking its own talk when it comes to accountability.”

In closing, he stated that, “In light of recent scandals, we need more information and accountability from this government, not less.”

He was right when he said that not one witness supported the idea of increasing the threshold for disclosure. On the contrary, those very witnesses, including the Office of the Information—

[Dan Albas, Conservative, Parliamentary Secretary to the President of the Treasury Board]

Mr. Speaker, I am pleased to have this opportunity to share the government's position on Bill C-461.

Bill C-461 was introduced in the House on November 5, 2012 by the member for Edmonton—St. Albert. As we now know, this bill has generated a fair bit of discussion. I believe that is healthy in any democratic society.

Bill C-461 has been subject to amendments that have also generated healthy democratic discussion.

It is important to recognize that bills are sent to the committee stage review as part of our democratic process. Committee review allows for input from stakeholders, expert witnesses, and those who may be impacted by any proposed piece of legislation. Let us never forget that legislation can affect the lives of Canadians. It is why we, as parliamentarians, must listen to all sides and strive to achieve a balance.

Our government is supportive of the principles raised by the member for Edmonton—St. Albert. The amendments to Bill C-461 provide a better balance in recognizing the obligation of the federal government as an employer.

Our government supports this bill, as amended. What exactly has been amended? In my view, we should not overlook that Bill C-461 proposes amendments to the Privacy Act. These amendments also coincide with this government's continuing goal of increasing openness and transparency.

Currently, much of public servants' expenses or salaries are protected under the Privacy Act. The Privacy Act is an important piece of legislation that protects the personal information of all individuals, including federal employees. However, the Privacy Act also recognizes the fact that federal employees work in the public domain. Increasing accountability and transparency requires that more personal information be made available to the public when that information is about positions or their functions within a government institution. The Privacy Act provides that this type of personal information should not be protected when an access to information request is made. That type of information should be disclosed.

What Bill C-461 proposes to do is specify that all expenses incurred by federal officers or employees of a government institution in the course of their work and for which they are reimbursed are not protected as personal information under the Privacy Act. If there was any ambiguity before, it would now be clear that this information could and should be disclosed to a requester.

Under Bill C-461, if individuals, in the course of their employment, incurred an expense and were compensated for that expense by the government, that information, the amount of compensation, could be disclosed.

Governments must spend public money wisely and only where necessary. A person cannot expect that the reimbursement of a work-related expense by a government institution will be kept confidential. It is in the public interest that the law be crystal clear on this point. I believe that this is an important aspect of public accountability. This is a small but reasonable addition that will make things clear for everyone.

Another aspect of Bill C-461 relating to transparency and public expenditures is the disclosure of the salaries of certain officers of government institutions. Currently, the Privacy Act authorizes government institutions to disclose the salary range, the classification, and the responsibilities of the position held by all officers and employees. For all public servants, this information is not treated as personal information. Therefore, this information can be disclosed under an access request. We believe that for the majority of public servants, this is sufficient and reasonable.

Where I believe we need to go further is with respect to the highest paid individuals in government institutions. Many provinces disclose, often proactively, the exact salaries of its highest earners. These are called sunshine lists. Publicly traded corporations routinely release the amount of compensation for their top officers. The idea behind this is that stakeholders in the company deserve to know the exact amount the highest compensated individuals are taking home.

When it comes to government, all taxpayers are interested stakeholders, and they deserve to have this information. In these cases, it is not sufficient to know the salary ranges and job classifications of some of the highest earners in government. These people receive bonuses and other discretionary benefits from government institutions. Often what these individuals will receive at the end of the year from an institution is substantially higher than what is publicly announced for their position. That is why we believe that government institutions should be authorized to disclose the exact salary paid to the highest earners. This would include all the bonuses and benefits given to the individual.

We strongly believe, however, that this level of intrusion on an individual's privacy should be reserved for the highest paid individuals only. This is what we have done in Bill C-461.

In conclusion, I want to say that this bill enhances transparency in the operations of government while still maintaining a critical balance that is respectful of personal privacy.

Employees and institutions are entrusted with the financial administration of the public purse and should be able to demonstrate where and how that money is being spent. Individuals should be able to request records and review expenditures by public servants, and this should obviously include the CBC. It will improve the overall confidence and trust in our institutions.

I would urge this House to adopt Bill C-461 as it is presented today. The improvements this bill proposes to the Access to Information Act and the Privacy Act are sensible and promote transparency, openness, and accountability in key ways across government.

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

, seconded by the member for Winnipeg North, moved:

Motion No. 1

That Bill C-461 be amended by replacing the long title on page 1 with the following:

“An Act to amend the Privacy Act (disclosure of information)”

Motion No. 2

That Bill C-461, in the short title, be amended by replacing line 4 on page 1 with the following:

“1. This Act may be cited as the”

Motion No. 3

That Bill C-461 be amended by deleting clause 2.

Motion No. 4

That Bill C-461 be amended by deleting Clause 3.

Motion No. 5

That Bill C-461, in Clause 4, be amended by replacing lines 4 to 20 on page 2 with the following:

“(iii) the total annual monetary income of the individual, including any performance bonus, as well as the job classification and responsibilities of the position held by the individual, and any additional responsibilities given to the individual, if that income is equal to or greater than the sessional allowance—within the meaning of the Parliament of Canada Act—payable to a member of Parliament,

(iii.1) the salary range of the position held by the individual, as well as the classification and responsibilities of that position, if the individual's total annual monetary income, including any performance bonus, is less than the sessional allowance—within the meaning of the Parliament of Canada Act—payable to a member of Parliament,

(iii.2) the expenses incurred by the individual in the course of employment for which the individual has been reimbursed by the government institution,”

Motion No. 6

That Bill C-461 be amended by deleting clause 5.

Motion No. 7

That Bill C-461 be amended by deleting clause 6.

Motion No. 8

That Bill C-461 be amended by deleting clause 7.

He said: Mr. Speaker, it is a pleasure for me to speak to the amendments that you have just deemed to be admissible with respect to the report stage of Bill C-461 dealing with public sector transparency.

The bill, in its original form, is intended to do two fairly modest things. It attempted to remedy a well-documented and often litigated flaw in the Access to Information Act regarding the public broadcaster. Section 68.1 has been the matter of no less than 14 separate pieces of litigation between the information officer and the Canadian Broadcasting Corporation.

Both the Federal Court and the Federal Court of Appeal found that section 68.1 of the Access to Information Act, brought in by the Conservative government in 2006, is flawed in its drafting because it creates an exclusion subject to an exception. Section 68.1, and I am paraphrasing, says that the freedom of information act does not apply to the Canadian Broadcasting Corporation in terms of its documents and information that relate to its journalistic, creative or programming activities, other than information that relates to its general administration.

We can see the problem. It creates an exclusion where the act does not apply except under certain circumstances, in other words, matters regarding general administration.

In my view, and in fairly well-documented examples, the Canadian Broadcasting Corporation was able to use section 68.1 to deny the disclosure of documents that were under access request. The fact that the act did not apply indicated there was no power of review from the Information Commissioner. The Information Commissioner gets her powers of review from the act, so if the act does not apply there is no power of review.

This bill, in its original form, attempted to remedy this. It attempted to remedy what two federal courts indicated was not a model of clarity and was very awkward in its drafting.

The Standing Committee on Access to Information, Privacy and Ethics did a complete study on section 68.1 because there was so much controversy and misunderstanding. There were also 14 pieces of litigation between the information commission and the CBC.

The committee heard testimony. The Information Commissioner, Ms. Legault, testified in front of the standing committee on access. She recommended that section 68.1 be repealed and that it be replaced with an injury-based exemption, not an exclusion. It would be discretionary, so that if the test was made that the CBC would somehow be injured in terms of its independence, she would recommend against disclosure. However, if there was no prejudice or injury, she would recommend that the documents be disclosed.

It all seemed perfectly reasonable at the time, and that recommendation was incorporated in the original version of Bill C-461.

We heard evidence at the committee, and we had a number of hearings. I am not a member of the committee, but I sat through them as an interested member and as the sponsor of the bill. We heard cogent evidence that the independence test was too narrow. It created a level of discomfort within both the broadcast industry and the public broadcaster that the independence test was too narrow and it might be expanded to include something similar, to protect not only the independence but the freedom of expression of the corporation.

I conceded at the last of my three witness appearances before the committee that it would be helpful. Wording to protect not only the independence of the corporation but also its freedom of expression would be helpful, and it would give a greater level of comfort to both the industry and the Canadian Broadcasting Corporation. However, the committee, or at least the majority of the committee, was disinclined to accept that type of recommendation, so it was not passed.

The committee did pass a most unhelpful amendment regarding journalistic source protection. The House will recall that the problem with section 68.1, as it still is in the act and in law today, is the exclusion at the beginning with the words “This Act does not apply..”.

What did the government do to amend it at committee? It granted another exclusion. It provided an absolute exclusion for journalistic source privilege. It recommended the wording “This Act does not apply..”, which means that the Information Commissioner has no powers of review. Therefore, decisions of the Canadian Broadcasting Corporation with respect to journalistic source privilege are absolute and not subject to review by the Information Commissioner.

The inevitable result of that untenable situation is litigation. The Information Commissioner said as much when she appeared before committee. If her powers of review are compromised, she would have to go to court to get clarification of those powers because section 36 of the act gives her unfettered power to review documents under the control of government institutions.

The government, in its so-called wisdom, proposed the exact same problem that we just set out to remedy, which was that we were replacing the exclusion in section 68.1 with a discretionary exemption. Then government members went ahead in their amendments at committee to provide an exclusion with respect to journalistic source privilege.

I believe, and I say this with some regret, that the bill as amended by the access committee is actually worse than the status quo, the existing provisions regarding the Access to Information Act.

My intent was to provide clarity and certainty, and to have less litigation rather than more litigation. The government refused to entertain amendments regarding extending the discretionary exemption to include freedom of expression, in addition to its insistence that an absolute exclusion be given with respect to journalistic source privilege. I think that makes this a bad piece of legislation with respect to the CBC access.

In the motions that have been tabled, I am proposing the deletion of any reference to access to information regarding the Canadian Broadcasting Corporation, including the name of the bill. Motions Nos. 1, 2, 3, 4, 6, 7 and 8 deal with the deletion of sections regarding the Canadian Broadcasting Corporation's obligations under the Access to Information Act.

I still believe that section 68.1 needs to be fixed because it is awkwardly drafted. The courts have called it “not a model of clarity”. When there is an exclusion and then the exclusion is limited with an exception, we would have nothing but misunderstanding and litigation. It has to be fixed, but the bill in its current form does not fix it. In fact, in my view it makes it worse.

With respect to journalistic source privilege, I absolutely understand the importance of allowing journalists to protect their confidential sources. The Information Commissioner has had 1,200 cases before her, and not one has ever dealt with journalistic source privilege. As well, the name of an informant is confidential information under the Privacy Act and could not be disclosed. The CBC amendments at committee were most unhelpful.

With my remaining time, I want to deal with what I think is the most contentious issue, and that is with respect to salary disclosure. The bill attempts to allow an amendment to the Privacy Act to allow specific salary and job description disclosure for a civil servant over an appropriate range. The range in the unamended act was for the lowest level of DM1, or $188,000. However, the committee in its wisdom, and I say that with more sarcasm than I have ever used in my life, decided to raise the disclosure bar to $444,000 to ensure it could not apply to any DM, including a DM4, or anybody below him or her.

I am not sure how the government reconciles that with Treasury Board proactive disclosure. If an individual has a contract with the Government of Canada for as little as $10,000, their name, their contract and the value of their contract is on a Treasury Board website. However, if the individual is a deputy minister making $444,000, apparently the privacy laws of Canada are made to protect them.

The nub of this issue, in my view, is the performance bonus. The Parliamentary Secretary to the Minister of Justice will get up and talk about already disclosing ranges of salary. That is true. However, a DM4 is the highest level. The range is $272,000 to $319,000, and that is a pretty big range. That is almost $50,000.

However, that does not end it. A deputy minister at that level is entitled to up to a 39% discretionary performance bonus, or $123,000. Nothing in our current privacy provisions or access to information allows any interested Canadian to find out anything about a performance bonus, and that to me is deficient.

This bill attempts to undo the damage done by the access committee on June 5 of this year, which incidentally was the same day I left the Conservative caucus, and to promote transparency and disclosure, not opaqueness and secrecy. Given all the allegations of secrecy and opaqueness in this town, I would think that the government would grab my amendments and support transparency and salvage its reputation.

Speaker's Ruling

[The Acting Speaker, Conservative, Bruce Stanton]

There are eight motions in amendment standing on the notice paper for the report stage of Bill C-461. Motions Nos. 1 to 8 will be grouped for debate and voted upon according to the voting pattern available at the table.

The House proceeded to the consideration of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), as reported (with amendments) from the committee.

Public Service of Canada

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

Mr. Speaker, in 90 minutes the House will debate amendments to Bill C-461 dealing with public sector salary disclosure. For weeks, the Parliamentary Secretary to the Prime Minister has become quite fond of saying that on that side of the House the Conservatives will always stand up for taxpayers, and I want to put that theory to the test.

Will the government support amendments to Bill C-461, fully supported by the Canadian Taxpayers Federation, to lower the salary disclosure bar for public servants from the ridiculous $444,761 to a more defensible sum, and that is the salary of a member of Parliament?

Access to Information

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Speaker, I have a very simple question for the Prime Minister.

Why did the government amend Bill C-461 in order to hide information on salaries under $480,000?

Access to Information, Privacy and Ethics

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I have the honour to present, in both official languages, the seventh report of the Standing Committee on Access to Information, Privacy and Ethics concerning Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Chair, pursuant to Standing Order 97.1 I move that the committee report to the House a recommendation that Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information), not be further proceeded with and to give the reasons therefore.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you, Mr. Chair. I move:

That Bill C-461, in Clause 6, be amended by replacing line 30 on page 2 with the following: (3) This Act does not apply to personal information that is under the control of the Canadian Broadcasting Corporation and that would reveal the identity of any confidential journalistic source. (4) Sections 4 to 10 do not apply to personal

The rest of that's fine.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Chair, at this stage, I would prefer to read it into the record myself because I see what a ruthless bunch I'm playing cards with here, and I don't want to be sitting in my undershirt at the end of this round.

That Bill C-461, in Clause 5, be amended by replacing lines 25 to 27 on page 2 with the following: "the information relates to its journalistic, creative, or programming activities."

[The Chair, NDP, Pierre-Luc Dusseault]

Now we go to clause 4, for which we have received three amendments. The first was from the NDP and it reads as follows:

That Bill C-461, in Clause 4, be amended (a) by replacing lines 17 to 19 on page 1 with the following: "4. (1) The portion of paragraph (j) of the definition "personal information" in section 3 of the Privacy Act before subparagraph (i) is replaced by the following: (j) information about an individual who is or was an officer or employee of a government institution or an employee of the office of a minister of the Crown that relates to the position or functions of the individual including, (2) Subparagraph (j)(i) of the definition "personal information" in section 3 of the Act is replaced by the following: (i) the fact that the individual is or was an officer or employee of the government institution or minister's office, (3) Subparagraph (j)(iii) of the definition "personal information" in section 3 of the Act is replaced by the following: (b) by replacing line 2 on page 2 with the following: "the government institution or minister's office an annual salary" (c) by replacing line 9 on page 2 with the following: "the government institution or minister's office an annual salary" (d) by replacing line 19 on page 2 with the following: "reimbursed by the government institution or minister's office,"

I will render a decision on the admissibility of that amendment.

Bill C-461 amends the Privacy Act by amending the definition of "personal information" as it pertains to the executives and employees of a federal institution. The purpose of the amendment in question is to extend the scope of the bill by subjecting the employees of a minister's office to the definition of "personal information".

House of Commons Procedure and Practice, second edition, states, on page 766:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

The Chair is of the view that adding the employees of a minister's office would extend the application of the provisions of Bill C-461 to a new group of employees, which constitutes a new concept that is beyond the scope of the bill. Consequently, in my view, the amendment motion is out of order.

Mr. Angus, do you have a point of order?

[The Chair, NDP, Pierre-Luc Dusseault]

Now we go to amendment NDP-1, which also amends clause 2.

Before we go to debate, I will read the amendment for those here present:

That Bill C-461, in Clause 2, be amended by replacing lines 12 to 15 on page 1 with the following: "requested under this Act if the information contained in the record relates to its journalistic, creative or programming activities."

Mr. Boulerice, you have the floor.

[The Chair, NDP, Pierre-Luc Dusseault]

If there are no further questions and no one wants to speak, I am prepared to call amendment CPC-1.

I am going to read it so that it is clear for everyone:

That Bill C-461, in Clause 2, be amended by replacing line 10 on page 1 with the following: 18.2 (1) This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation and that would reveal the identity of any journalistic source. (2) The head of the Canadian Broadcasting

(Amendment CPC-1 carried on division)

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

I apologize. I will try to do better.

As I was saying:

Bill C-461 cannot be salvaged, even by extensive amendments. The government and Parliament have no place in the newsrooms of the country. Bill C-461 turns an outright exclusion for CBC journalism into an exemption based on an injury test that could be fought by each applicant in court. This would place conditions on CBC's journalism that exist for no other news organization in Canada. This is an affront to the principle of freedom of the media. Some have argued that such demands of the CBC would be unconstitutional. Bill C-461 moves further away from what is really needed: additional measures [to provide protection] from the government and powerful interests.

There are journalistic sources, but also the issue of programming. Mr. Chair, I am sure that we will have occasion to talk about this later since the CBC is in a competitive market, particularly as regards advertising purchases.

In the years immediately after the CBC was put under the Access to Information Act in 2007, the corporation admittedly experienced serious problems in responding to access requests in a timely fashion. That problem has been rectified, as exemplified by the "A" grade recently awarded to the CBC in the most recent report card by the Information Commissioner of Canada.

The author of the bill reminded us during his testimony that Canada had fallen to 56^th place out of 90 countries with regard to transparency. My impression is that this bill will solve nothing, that it will jeopardize journalistic sources and that it will also be an attempt to solve a problem that does not exist. There are enough federal government departments and agencies that have transparency and access to information problems. This direct attack on the CBC could have been avoided.

The Guild is not the only organization concerned about journalistic work. Ms. Maryse Bertrand, who is Vice-President, Real Estate, Legal Services and General Counsel at the Canadian Broadcasting Corporation, wrote to you, Mr. Chair. I believe she testified before this committee.

While this legislation proposes to increase the public's access to information held by removing the specific exclusions provided in law to the Canadian Broadcasting Corporation, Bill C-461 may undermine the Corporation's ability to do its job as mandated by Parliament. As the Information Commissioner pointed out in her submission to the Committee, the Federal Court of Appeal ruling is clear: The Commissioner can review documents held by CBC/Radio-Canada in order to determine whether the exclusion under section 68.1 applies, except when it comes to journalistic sources. We are both satisfied with that decision and have been working well together to process our outstanding cases. C-461 would remove the 68.1 exclusion completely. As we noted in our appearance, public broadcasters in Ireland, Great Britain, and Australia all have exclusions from their Freedom of Information laws for journalism, programming and creative activities. The exclusion exists in order to ensure that these public broadcasters are subject to freedom of information legislation without compromising the very job they are mandated to do. It is unclear why that situation should be different for Canada's public broadcaster.

Indeed, Mr. Chair, they are not clear at all. That is our criticism of this bill, which risks jeopardizing one of the most effective newsrooms in Quebec and Canada.

Vice-President Bertrand continued as follows:

Our specific concerns are the following: By changing "journalistic, programming and creative activities", to "journalistic, programming and creative independence", C-461 limits the protection of CBC/Radio-Canada's activities to areas where the Corporation can prove damage to its independence.

Under the system of exemptions, the burden of proof is now on the CBC. Mr. Bob Carty, of the Canadian Media Guild, told the committee about the proof of prejudice to its independence from the government. He told us this:

...a pharmaceutical company eager to know what we are finding out about the deadly side effects of one of its drugs could argue in court that the release of my journalistic materials, even sources, in no way compromises the CBC's independence from government and Parliament. The release would damage my credibility, the CBC's journalistic integrity, and quite possibly subject us to a lawsuit to prevent the material from being broadcast.

Going back to Ms. Bertrand's letter: By failing to specifically protect journalistic sources, C-461 may undermine the ability of CBC journalists to secure the trust of sources, obtain confidential information, and report to Canadians. To be clear, this is not a question of whether the Commissioner can be trusted to see confidential information. The issue is whether confidential sources will trust in CBC/Radio-Canada journalists knowing that their identity will be shared with the Commissioner's office. We must disagree with the Commissioner's belief that journalistic sources are adequately protected elsewhere. They are not.

That is Ms. Bertrand's point of view.

Furthermore, like judges who do not need to see the names of sources in order to decide if they should be protected, we believe the Commissioner does not need access to such names in order to decide that information is at the heart of our journalism. This is why the decision from the Federal Court of Appeal specifically excludes the Information Commissioner from viewing journalistic sources in the current law.

We are not talking about redacting a document to remove only names, but rather about all the information, context, dates and places that might help identify a whistleblower or person working in close co-operation with the commissioner.

I want to close with Ms. Bertrand's conclusion. I will also let my colleagues give us their comments on the amendment that has been presented to us.

Ms. Bertrand writes as follows:

If Parliament wishes to update Canada's Access to Information Act, we believe that it should do so, as part of an overall review. As the Commissioner told the Committee, changes to Access to Information "demand thoughtful, unified action and are not easily amenable to a piecemeal solution. Piecemeal efforts result in unintended consequences which it is now clear, would be the case with this piece of legislation, however well-intentioned. For these reasons, we believe that the Parliament should not proceed with C-461.

In our humble opinion, the amendment designed to protect journalistic sources is inadequate. In fact, the entire bill should be reviewed. The protections provided for the CBC's journalistic, creative and programming work should be strengthened. However, that is not what we see before us.

In light of these preliminary remarks, Mr. Chair, I would like to say that we will vote against the amendment.

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

Thank you, Mr. Chair.

Coming back to the importance of protecting journalistic sources, I repeat that we believe the amendment presented by the Conservative Party still fails to address all the concerns that have been submitted to us.

There were other, much more effective ways of doing that, but the Conservatives preferred to head in this direction, thus raising quite serious concerns within the profession across the country. If there had been a genuine concern to enable the Information Commissioner to do her job, we could perhaps have drawn on foreign legislation that grants full authority to obtain documents and determined whether the access to information request is legitimate. Instead of that, they have restricted the definition of "activities" to that of "independence", which has somewhat inflamed the situation.

On this point, the Canadian Media Guild, which is concerned with matters pertaining to the right to information, told us this during the hearings:

We are concerned that the impetus behind Bill C-461 is to strengthen the hand of the CBC's media competitors and to weaken the Corporation's journalistic integrity and ability to protect its confidential sources.

We are really addressing the issue of protection for journalistic sources. Most of the bill's opponents pointed out this particular feature. It did not concern disclosure of the compensation of the most highly paid employees, a point on which most people could agree.

The Guild also said this:

If the supporters of this bill really want the Access to Information system to work better—and we would agree that this is desperately needed—then they should bring forward a comprehensive package for reforming the Act, with careful consideration for how it intersects with the Privacy and Broadcasting acts. For example, the House of Commons and the Senate should be put under the act as they are in most modern freedom to information laws and in other parliamentary democracies…. The Information Commissioner should receive order-making powers….

That is not provided for in the bill or in this amendment. Bill C-461 addresses none of these changes.

The Guild also noted the following:

If one of the objectives of C-461 is to achieve greater transparency about the salaries paid to employees of Crown Corporations, of which the CBC is only one, as well as those of government departments and agencies, then it should address that directly and comprehensively, naming all the departments, corporations and agencies involved and thoroughly examining the relevant privacy issues.

We can also address the issue of the bureaucracy. I recall a comment by Mr. Carmichael that I thought was interesting. He talked about the danger involved in creating a new registry. That is an explosive word, and I do not think the Conservative government intends to create more registries, red tape and bureaucracy.

The Guild also told us this:

Bill C-461 cannot be salvaged—

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

Thank you, Mr. Chair.

It is important to put the entire bill in context. I see this amendment as an attempt by the Conservatives to protect journalistic sources in a way. This is an issue that has been raised several times by various groups. It was mainly raised by professionals working in the field, sometimes by those from the CBC, but not exclusively by them.

In this brief comment, I also want to provide some context for this bill, which concerns access to information. It does not address just any federal government organization but rather one organization in particular, the Canadian Broadcasting Corporation. It has a long history as well as a unique mandate and role in the television, artistic and news landscape. I think it is important to bear that in mind to ensure that the unique mandate and special role of the Canadian Broadcasting Corporation are preserved for decades to come.

This institution, which recently celebrated its 75^th anniversary, has made a contribution to Canada's identity and to our cultural life. That contribution has been greatly appreciated by all Quebeckers and Canadians. Things have been done at the CBC that have never been done elsewhere and that could not have been done elsewhere. It is therefore a precious jewel.

On this point, it is worth citing the Fédération professionnelle des journalistes du Québec on the values that must be defended when talking about CBC/Radio-Canada.

Note that the corporation's mandate includes specific items such as local and regional coverage, which is much more intensive and greatly appreciated by communities not generally covered by the major private networks. This makes it possible to tell stories about all the provinces and regions of the country. These are stories that have shaped our collective imagination both in Quebec and elsewhere in Canada. For adults, those stories were told through documentaries, news reports and investigations and, for children, through cartoons that stimulated our children's imaginations on Saturday and Sunday mornings.

With respect to the values that should be defended, I refer to the brief submitted to us by the Fédération professionnelle des journalistes du Québec, which states, with respect to the relevance of a public broadcaster:

The Standing Committee was not given the mandate to consider the appropriateness and the pertinence of a public broadcaster in Canada. Parliament has decided on this issue decades ago when it launched the CBC. Yet, it is the subtext to C-461, as if there was an elephant in the room. The FPJQ has always defended the existence of a strong public broadcaster as an irreplaceable vector of public interest information. The Federation opposes any measure that would diminish this role.

That is obviously an opinion that the New Democratic Party shares.

The FPJQ continues as follows:

The mainstream media are facing, worldwide, economic difficulties that affect their ability to inform the public in a professional manner. ...we must be careful not to weaken one of the most important news organizations in the country, which has received many prestigious awards for the quality of its information.

The second value that, according to the federation's presentation, must be defended is the independence of the CBC as a public broadcaster. This is the independence that we have discussed, the interpretation of which, in accordance with the terms of the bill before us, we feel is not very clear. The FPJQ states:

It can be difficult to accept the idea that an organization funded largely by public funds should not be held fully accountable, as any other Crown corporation. Still, it is a reality that we must accept since the CBC operates in a very special and unique field, information and journalism.

To digress briefly, it is not just information that must be considered, but also programming. However, I will come back to that later.

The FPJQ's presentation continues:

In this field, the value of a media company, regardless of its structure of property, is its independence from all the powers in place. In the CBC's case, we must especially protect and warrant its independence from the various governments that come and go at the helm of the State. "The status of the broadcaster is a defining feature of the CBC and helps to distinguish it from other Crown corporations. It has the status of a diffuser, and as such, it is in charge of its editorial decisions and it takes full responsibility for them, to the exclusion of executive power of the State." The Broadcasting Act explicitly stipulates in article 46, paragraph 5: "The Corporation shall, in the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence."

One cannot freely report if one is not independent. And if one does not freely inform, one is not in the news business but in the realm of promotion, publicity or worse, propaganda. The free flow of information and the freedom to report it is a feature of the CBC, unlike some of its counterparts in authoritarian regimes, where state-sponsored information is censored and controlled. The FPJQ intervened several times in its some 40 years of activity to protect the CBC's independence against the threats made by successive governments.

This is obviously a value that is dear to us. I thought it was important to recall the position of the Fédération professionnelle des journalistes du Québec on this point.

It is important to note that the CBC contributes in a way to the protection of linguistic minorities. I am mainly thinking of the coverage that francophones outside Quebec obtain through RDI and local Radio-Canada programming. That would probably not be the case if free market forces alone gave free rein—

[The Chair, NDP, Pierre-Luc Dusseault]

We will go straight to the second item on the agenda, clause-by-clause consideration of Bill C-461.

Pursuant to Standing Order 75(1), clause 1, which concerns the short title, is postponed. I therefore call clause 2.

(On clause 2—Canadian Broadcasting Corporation)

[John Carmichael, Conservative, Don Valley West, ON]

Thank you, Chair.

Thank you to our witnesses for appearing today.

Commissioner, I think I've had most of my questions answered through earlier testimony and some of your presentation today, but I'd like to just clarify something. The private member's bill, Bill C-461, does not really distinguish between general information that the CBC possesses and information that the CBC possesses that would reveal the identity of confidential journalistic sources.

I wonder if you could go a little deeper and give us your view on that situation specifically.

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

Good.

As you probably know, many of the people who have come to testify before us on Bill C-461 had quite major concerns about the protection of journalistic sources.

Our interpretation of the bill as it stands is that information on programming, creation and journalistic work will be protected provided it concerns the CBC's independence. In our view, under the current interpretation, independence means independence from the federal government.

Many people who came here asked whether it was possible, for example, for someone to file an access to information request to determine what company or individual the program Enquête would be investigating. In that case, the journalist might perhaps be compelled to provide the applicant with information on ongoing investigations.

Do you view that kind of practice as a threat from your privacy perspective?

[Jennifer Stoddart, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Mr. Chair and honourable members, thank you very much for inviting me here this afternoon for your study of Bill C-461, the CBC and public service disclosure and transparency act.

As you said, Mr. Chair, the senior general counsel is with me in order to respond to your more technical legal questions.

First, for some context, from the outset I'd like to acknowledge that the amendments to the Access to Information Act and the Privacy Act in the bill raise complex and highly topical issues related to open government. We take it as given that most citizens would like to see greater openness in public institutions. Accountability plays a central role in our democracy and in Canadian society. Indeed, in September 2010, all of Canada's federal, provincial, and territorial access to information and privacy commissioners signed a resolution to promote open government as a means to enhance transparency and accountability.

As you are aware, Bill C-461 amends both the federal Access to Information Act as well as the Privacy Act.

As Privacy Commissioner, I will limit my remarks to those amendments that implicate privacy. I understand that you have already had the opportunity to hear from my colleague Ms. Legault, the Information Commissioner, on the amendments pertaining to access to information.

At a high level, Bill C-461 revises the definition of "personal information" found in section 3 of the Privacy Act to specify that certain categories of information are "non-personal" information for the purposes of release under access to information requests.

Specifically, the elements no longer deemed personal information would include: the classification, salary and responsibilities of any federal employee whose salary is equal to or greater than the minimum salary of the first level of the Deputy Minister category, currently set at $188,600; the classification, salary range and responsibilities of any position held by a federal employee whose salary falls under the first level of the Deputy Minister category; and the details of any reimbursed expenses incurred by any federal employee in the course of their employment.

Now I will tell you about existing practice in government.

To better situate these proposed amendments in the broader drive for openness and accountability, I would like to briefly touch on comparable measures that already exist in various sectors and at various levels of government.

The Public Service of Canada already makes publicly available its rates of pay for all of its positions, up to and including those at the Deputy Minister and Chief Executive Officer levels. Similarly, for Governor-in-Council appointments, the Privy Council Office website lists detailed salary ranges for each position, which incidentally include those of the Office of the Privacy Commissioner of Canada.

The Treasury Board Secretariat has also implemented a series of measures that apply across the federal public service for the proactive disclosure of financial and human resources-related information such as travel and hospitality expenses for senior government officials, the reclassification of government positions, and contracts above $10,000.

At the provincial level, some governments use thresholds to disclose the salaries of public sector officials. According to our research, Manitoba has the lowest threshold at $50,000, whereas Ontario and Nova Scotia adopted $100,000 thresholds, and British Columbia a $125,000 threshold. While Manitoba, Ontario and Nova Scotia disclose the names and salaries of all officials and employees earning over the established threshold, British Columbia only releases the names and salaries of a public sector organization's CEO and the next four highest ranking executives.

In the private sector, publicly-traded companies must also disclose all compensation paid to their Chief Executive Officer, Chief Financial Officer and next three top-paid executives. This includes all shares, options and bonuses, and applies to those earning more than $150,000 in total compensation.

Given these examples, it would appear that disclosure of salaries for individuals in leadership roles within organizations, in both the Canadian public sector and private enterprise, is already best practice.

In the opinion of my office, and taking into account best practices elsewhere in Canada, the disclosure of the salaries of the most senior officials in the federal public sector does not represent a significant privacy risk relative to the goal of transparency and the broader public interest. With respect to the disclosure of position classifications, job descriptions, and reimbursed expenses, my understanding is that this kind of information is already disclosed upon request in many government departments and agencies under the existing access to information regime.

Within my own office, our director of human resources and our chief privacy officer indicate to me that were we to receive an access to information request tomorrow for an employee's classification, salary range, work description, or reimbursed expenses, we would disclose this information. This would be in accordance with our access to information and privacy responsibilities and our general commitment to transparency and accountability to Canadians.

Given current practice, and the broader public policy aim of institutional transparency and accountability, these disclosures do not represent serious privacy implications.

I thank you once again, Mr. Chair, for this opportunity to present my office's views on this bill. I look forward to your questions.

[The Chair, NDP, Pierre-Luc Dusseault]

We will begin the 84^th meeting of the Standing Committee on Access to Information, Privacy and Ethics, which concerns Bill C-461.

In the first hour, we will hear from the Privacy Commissioner, Ms. Jennifer Stoddart. She is here with Ms. Kosseim, who is Senior General Counsel and Director General of Legal Services, Policy and Research.

Mr. Boulerice, you have the floor.

[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.

[Suzanne Legault, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Thank you, Mr. Chair.

Thank you for inviting me to speak to you today in relation to your study of Bill C-461.

This bill proposes the repeal of section 68.1 of the Access to Information Act, which excludes information relating to the Canadian Broadcasting Corporation's journalistic, creative, or programming activities, subject to an exception for information relating to its general administration.

The bill would replace that exclusion with a new exemption, which would allow CBC to withhold records that could reasonably be expected to prejudice the journalistic, creative, or programming independence of the CBC.

At the outset, I would like to describe briefly the general structure of the act, the limits to the right of access and the powers given to my office.

To that end, Mr. Chair, I have circulated a document to committee members which sets out in a little more detail the various exemptions and exclusions, and explains the difference between the two. The document also explains the general provisions of the legislation as applied to my powers. It provides committee members with more information.

The legislation creates a right to access information under the control of government institutions, subject to specific and limited exceptions. The act limits access by way of exemptions and exclusions.

Exclusions provide that the act does not apply to certain records or information. The act also includes various exemptions that permit or require institutions to withhold a range of records and information.

The act gives the commissioner broad investigatory powers, including access to all the documents under the control of the federal institution to which the act applies. The commissioner has broad powers to require the production of these records.

Thus, when an exemption is invoked by an institution, the commissioner has access to the documents in their entirety. However, where an institution invokes an exclusion, access to the underlying information or records depends on the nature of the exclusion relied on by the institution.

The commissioner's access to records and information, which had been identified by the CBC as falling within the exclusion found in section 68.1, was at issue before the Federal Court of Appeal at the time of my appearance in October 2011. In November 2011, the Federal Court of Appeal rendered its decision.

The question of the extent of the commissioner's powers to examine documents for which an exclusion is invoked was raised in the investigations of the many complaints about the CBC's use of section 68.1 of the act.

As the result of the CBC's challenge to my power to compel the production of documents mentioned in that section, the Court of Appeal confirmed that the commissioner is allowed access to documents covered by the exclusion in order to determine whether the exception fell within the exception for information relating to the administration of the CBC.

With respect to information that would reveal a journalistic source, the Federal Court of Appeal's explanation was:

The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record—or the part thereof—revealing this type of information would be exempt from the Commissioner’s power of examination.

In its decision, the Court of Appeal resolved the scope of the commissioner's powers to compel the production of the records to which CBC has applied section 68.1. What the decision does not resolve is the scope of the exception to the exclusion and the meaning of the terms used in section 68.1, such as “journalistic, creative or programming activities”. So this does not preclude subsequent litigation on the scope of the exception or the exclusion.

Before I discuss the specific modifications proposed by Bill C-461, it is important to emphasize that the challenges related to access to information are complex. They demand thoughtful, unified action, and are not easily amenable to a piecemeal solution.

Like my predecessors, I have more than once observed that the act requires modernization to bring it in line with more progressive and international models. While it is true that the act was considered state-of-the-art legislation when it received royal assent in 1982, it is now significantly outdated. While acknowledging the need to amend the law, I maintain that it should not be done in a disjointed way, since this leads to issue-specific amendments that erode the act's status as a law of general application.

At the very least, the structure of the act as a whole must be considered when amendments are proposed. We must examine not only the specific interests to be protected by changes or additions to the law, but also the spirit of the law, the way in which it is structured, and its general framework. The chosen approach must, in my view, preserve the law's character as one of general application.

The amendments proposed in Bill C-461 in relation to the CBC reflect what I suggested when I appeared before this committee in October 2011.

Since the committee has been having hearings, I have been following the comments of the stakeholders very closely, as well as the comments of parliamentarians in the House of Commons, and I'll be happy to discuss some of the issues that have been raised by various parties.

At this time, Bill C-461 proposes the repeal of section 68.1 and the insertion of a discretionary, injury-based exemption that would permit the CBC to withhold information that “could reasonably be expected to prejudice the corporation's journalistic, creative, or programming independence”. A discretionary, injury-based exemption will ensure requesters' rights to an independent review process in all matters.

To be clear, any information or records obtained by my office are reviewed solely for investigative purposes. Indeed, the access act's confidentiality requirements are very strict and do not allow the disclosure of any information during the performance of my duties.

In concluding, I ask the committee to consider how these proposed amendments to the Act will apply to the more than 200 complaints currently under investigation. Will the new provisions be applicable to ongoing files, that is, requests and complaints to CBC, or only to new requests? The bill in its current form makes no mention of transitional measures for dealing with existing files. So I invite the committee to consider that matter as it deliberates.

In my view, it would be better that the new provisions be applicable to existing complaints and requests since a requester may simply make a new request, thereby benefiting from the application of the new provisions. But, for that to be the effect, a specific provision is needed, in my view.

With that, Mr. Chair, I would be pleased to answer your questions.

[The Chair, NDP, Pierre-Luc Dusseault]

Welcome to the 82nd meeting of the Standing Committee on Access to Information, Privacy and Ethics. We are continuing our study on Bill C-461.

Unfortunately, we are 25 minutes late; we have the Information Commissioner with us. She is accompanied by Ms. McCarthy, Assistant Commissioner, Complaints Resolution and Compliance.

I now give the floor to the Information Commissioner, Suzanne Legault. She will be speaking to us about the bill for about 10 minutes. Then there will be a period when committee members will be able to ask questions.

Without further delay, you have the floor for 10 minutes, Ms. Legault. Thank you for being here.

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Andrews.

Since the bells have begun to ring, I must take this opportunity to thank our witnesses. The hour we had to spend with you is now over.

I thank your for your testimony and your thoughts in the context of our study of Bill C-461.

Since the bells are ringing, I must suspend the meeting, unless I have unanimous consent to continue at this time.

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

Thank you.

Thanks very much, to each of you, for being here with us this afternoon.

When it comes to the information on section 68.1, certainly this is something this committee has been looking at for quite some time. I think you're probably all well aware that we did an extensive study on that and recommended that section be amended in order to comply with the Federal Court of Appeal's decisions on the matter. I'm quite sure you would have followed that. Now we're looking at Bill C-461 and discussing the same issue with section 68.1.

Madame Bertrand, you talked about your concerns with the bill, that as it's currently drafted it would have some unintended consequences. You were afraid, in your words, that it may undermine CBC/Radio-Canada's “ability to do its job as mandated by Parliament”. I would like you to talk a little bit about that. As well, you talked about the bill removing current protections for journalism, and the Federal Court of Appeal making section 68.1 crystal clear and how that should continue.

We've heard from the mover of the bill that he feels his bill absolutely upholds the Federal Court of Appeal's decision on section 68.1. I'd like to know why you feel it doesn't, if in fact that's what you do feel.

Also, when we heard from the commissioner the last time, she told us that since 2007 they've looked at close to 1,200 cases in relation to CBC and they have about 200 remaining. Out of all those cases, no case has dealt with journalistic sources, and she thinks that's an important fact to know when we consider possible amendments. Can you also talk about the fact that out of all of those cases she has not dealt with any dealing with journalistic sources?

There are three or four different things there that I'd like you to talk about, please.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Thank you, Mr. Myles.

My next question is for Ms. Bertrand or Mr. Poulter.

With Bill C-461, we are moving to an exception based on CBC/Radio-Canada's independence. We asked Mr. Rathgeber how he defined that concept. He replied that it was independence from the government.

In your opinion, how is the concept of independence, which is in fact derived from the Broadcasting Act, to be defined?

[Brian Myles, President, Journalist Le Devoir, Fédération professionnelle des journalistes du Québec]

Good afternoon.

Allow me to introduce myself: I am Brian Myles, President of Quebec's Professional Federation of Journalists, or FPJQ. To my left, I am joined by Mr. Claude Robillard, who is our Secretary General.

The federation represents 2,000 journalists in Quebec. It is one of the biggest associations of its kind. It is not a union. It is an association which includes executives, salaried workers and independent journalists who rally around the noble cause of diversity of information, freedom of the press and the public's right to information.

For the FPJQ, the issues at stake in this bill are not so much access to information and transparency at CBC/Radio-Canada, but the protection of sources and of freedom of the press. These values are very important to us. Parliament decided a long time ago to give the country a public broadcaster. The very existence of CBC/Radio-Canada is not what is being called into question today. At the federation, we continue to believe that Canada needs a public broadcaster to encourage a diversity of voices.

Over the years, this corporation has played an invaluable role, in particular in investigative journalism. In Quebec currently, as you know, the Charbonneau Commission is investigating corruption and collusion in the construction industry. However, if these journalists—and first and foremost those of Radio-Canada—had not been on the case, this commission of inquiry which is revealing inappropriate expenditures that are now totalling millions of dollars—soon to be billions—would never have seen the light of day.

We feel that at all costs, we must prevent the public broadcaster from being weakened in any way. The Canadian Broadcasting Corporation is independent, and this must not become a hollow concept, an empty expression that is useful in beautiful speeches: rather, it must be a fact of life in daily reality and in the management of the day-to-day affairs of CBC/Radio-Canada.

Parliament already has two far-reaching and very important powers, since it determines the annual budgets of the corporation, and appoints the members of the board. The CRTC is then responsible for holding the corporation to account. It has considerably improved its record, which, it must be said, was somewhat disappointing in terms of access to information. This independence is what makes the difference between a true crown corporation which practices journalism, and a phoney institution that could eventually sink into shallow surface journalism, if not promotion or propaganda, as is the case in certain dictatorships.

A public corporation cannot consider practising journalism today without this independence from the state, and private broadcasters must enjoy a similar autonomy with regard to editors or bosses. The bill weakens CBC/Radio-Canada's situation in relation to its competitors. The message being sent is that the protection of sources is less important at CBC/Radio-Canada than at other broadcasters.

Since the Supreme Court ruling in the “MaChouette” affair, the famous case of Daniel Leblanc, a journalist at The Globe and Mail, there is now a test to protect sources in Canada. This is the famous Wigmore test, under which a source may be divulged before a court of justice, but only as a last resort. Moreover, it must be proven that disclosure will be more beneficial to uncovering the truth than silence. As the courts and the Supreme Court have said, we must always ensure that the high value of investigative journalism is protected.

Two very important elements underpin the mandate of CBC/Radio-Canada, and they are the Broadcasting Act, which guarantees the corporation full independence in matters of journalism, and the Journalistic Standards and Practices of the CBC. That document expressly states the following: “We are independent of all lobbies and of all political and economic influence. We uphold freedom of expression and freedom of the press, the touchstones of a free and democratic society. Public interest guides all of our decisions.”

These are the values that must be paramount when studying the bill. By going from an exclusion—that is to say the current standard—to an exemption, we run the risk of weakening the protection of sources. Mr. Carty spoke earlier of pharmaceutical companies that could want to appropriate secrets. I have no trouble believing that in the current context in Quebec, engineering firms and construction contractors would try to find out who is investigating them and would try to obtain information even before any investigation was concluded or made public.

The risk is that people will eventually want to have access to journalists' notes, and will want to know who they had dinner with, how much time they spent covering an issue, who they are investigating, and what network or contacts they are using to work on a project. Ultimately, an investigation could be nipped in the bud before it was even begun.

You must know that investigative journalism is not an easy or simple genre. There is a lot of preliminary background work that has to be done, whether it concerns the selection of topics, the identification of potential sources and the contacts that will lead us to speak to a source, taking us eventually to the ultimate source, who may confirm or infirm the original thesis.

This cannot be an open process, it cannot be brought to fruition in real time, in the full public light of day. There has to be a minimum of protection—if not of secrecy—and of discretion if the investigation is to go forward. This can be compared to baking a cake, if you like to cook. If you put a nice cake in the oven and open the door after two minutes, your cake will not rise. This bill means that the door will be opened on investigations that are underway and they will literally be snuffed out.

What collective benefit can there be to weakening an important news voice, a voice that has provided us with great investigations that have received international awards, a voice that has allowed us to shed light on numerous scandals? Whatever government is in power, there is no advantage in doing that.

We believe that in its current form, the bill does not offer sufficient guarantees to adequately protect the sources of CBC/Radio-Canada journalists. With this mechanism, people will always be turning to executives—those responsible for access to information—or to a superior court to force the disclosure of journalist's notes. Ultimately, as my colleagues have said, CBC/Radio-Canada journalists will not be able to guarantee their sources the same degree of protection as do journalists who work for other, private media.

Unfortunately, there isn't much to be done. I don't see how an amendment to the bill to exclude journalistic sources will save the day. It seems to me that the proper route to follow—and that is the sole recommendation we are making—is to vote down all of Bill C-461. We, the members of the federation, have always defended the principle of protecting sources. If Parliament feels that we need a law to protect sources, I urge our elected representatives to hold that debate. We will be pleased to come and testify about our experience and make our suggestions, but, please, if you must raise as serious a topic as the protection of sources, do so for all of the journalistic community. Indeed, in this day and age, no investigation worthy of the name is conducted without resorting to confidential sources and journalistic material.

Thank you very much.

[Marc-Philippe Laurin]

The CBC was created by an act of Parliament because Canadians wanted a public broadcaster. Today we believe that a majority of Canadians still want a public broadcaster and they want a robust one able to hold its own in the media marketplace. We can't imagine anyone trying to impose the conditions outlined in Bill C-461 on any other media in Canada. They certainly shouldn't be imposed on CBC/Radio-Canada, the biggest news organization in the country and an essential vehicle for informing the public.

Bill C-461 would have an adverse effect on the public broadcaster's information service. The bill attacks the very principle of freedom of the press and would not be in the best interest of the citizens of Canada.

We urge this committee to recommend proceeding no further with Bill C-461. We would certainly support a thorough review of the Access to Information Act. We would be pleased to participate in any future proceedings towards reform of the act to improve accountability and access, but without endangering freedom of expression and the integrity of the public broadcaster.

In closing what we would like to say is that if what members of Parliament want is a sunshine list of public servant salaries, then it should draft a clear and transparent bill to that end instead of using the back door and destroying CBC journalism in the process.

Thank you.

[Bob Carty, Member, Canadian Media Guild]

Thank you, Marc-Philippe.

Mr. Chairman and members of Parliament, I'd like to look at this bill from the perspective of a journalist. I have worked with the investigative unit of the CBC in past years. One of the main stories we worked on for years was about adverse drug reactions, the sickness and death that could be caused by pharmaceutical products. It was an investigation that involved confidential sources, access to information requests, and it eventually won 10 Canadian and international awards.

I'd like to present a hypothetical analysis of how an access request with this kind of a topic might work currently under section 68.1, or in the future under Bill C-461.

As you know the sector that most uses access to information is the business sector, so in my example let's say an access request is made by a pharmaceutical company. It wants access to my e-mails, reporters' notebooks, even confidential sources. It wants access to perhaps my strategies to do interviews, my travel plans, and things like that—all the processes involved in collecting an investigative report. Under the access request as it currently works under section 68.1, the exclusion process, which has been clarified by the Federal Court, is fairly straightforward. My confidential sources are completely out of bounds. The court has ruled here that the CBC's right of exclusion is absolute. As for my notebooks, the e-mails, the research materials, the CBC would refuse to disclose them because they relate to journalism, by definition.

The Information Commissioner now has the right to review all these documents nonetheless, but she would likely agree because, again, the materials are clearly journalistic in nature. The pharmaceutical company could go to court, but I think the courts would side with the CBC, and my sources, my notes, my research, my investigative broadcast would be protected, and so would the CBC's inherent right to freedom of information.

This is not the case if Bill C-461 goes through. What would happen there? Under the bill's exemption, all my materials, even my confidential sources, would be on the table. Nothing is protected, not even sources, which the Federal Court and the Supreme Court have recognized as an essential component to free expression. For each piece of my material the CBC would have to prove that disclosure would harm the corporation's journalistic, creative, or programming independence, and that word is critical. It's where it gets very messy too.

The CBC's independence as discussed in the Broadcasting Act, and as the sponsor of the bill outlined it last week, almost always concerns the issue of the CBC's independence from government and Parliament. However a pharmaceutical company eager to know what we are finding out about the deadly side effects of one of its drugs could argue in court that the release of my journalistic materials, even sources, in no way compromises the CBC's independence from government and Parliament. The release would damage my credibility, the CBC's journalistic integrity, and quite possibly subject us to a lawsuit to prevent the material from even being broadcast.

In such a scenario what reporter in good conscience could promise he or she could protect the source? Without that protection what whistle-blower would approach us with a story of corruption? The CBC would be stripped of much of its ability to conduct public service journalism. The public broadcaster would lose its inherent right to freedom of expression.

In the same way we have deep concerns about Bill C-461's amendments to the Privacy Act. The exemption here is again based upon harm being done to the CBC's journalistic independence from government. Under these changes a person being investigated by the CBC, perhaps a doctor, or perhaps a Mafia boss in Montreal, could request all information about himself in the possession of the CBC. The CBC would be forced to turn over information about criminal activities, about this Mafia don, even before it was broadcast. No other media outlet would be subject to such a process. Again great harm would be done to the CBC's integrity, its ability to function in the marketplace, its very freedom of expression.

Mr. Chairman, both these changes to the access law and to the Privacy Act are ill conceived. They are not necessary. In the name of accountability they would cripple the public broadcaster's ability to hold those in power to account. In the name of access to information, one of the foundations of freedom of expression, the bill would damage other important freedoms of speech: the freedom and the duty to protect sources, and the right of the CBC to its editorial freedom.

Thank you, I'll turn it back to Marc.

[Marc-Philippe Laurin, President, CBC Branch, Canadian Media Guild]

Thank you, Mr. Chair and members of the committee.

My name is Marc-Philippe Laurin and I am President of the CBC Branch of the Canadian Media Guild. We represent the people who work for CBC/Radio-Canada across Canada, with the exception of Quebec.

I'm joined by guild member, Bob Carty, a long-time CBC radio producer and investigative journalist, who's also a member of the board of Canadian Journalists For Free Expression. The Canadian Media Guild represents 6,000 media workers across Canada at 10 different media outlets.

The guild has long supported a robust system to ensure access to information. We respect the fact that the CBC, as a recipient of public funds, has serious responsibilities for accountability under the access to information system, but it also has other obligations that are equally serious. It must fulfill its mandate from Parliament while maintaining a true arm's-length relationship with the government of the day. It must conduct its journalism with integrity and complete editorial freedom, and it is responsible for the protection of its confidential sources.

We feel that Bill C-461 would adversely affect CBC/Radio-Canada journalists. The new provisions being proposed would undermine their integrity and capacity to protect their sources. For this reason, we urge the committee to recommend that Parliament take no further measures regarding this bill. In the absence of such a recommendation, we ask that Parliament vote against Bill C-461. The bill is beyond repair, even with amendments.

Bill C-461 places demands on CBC/Radio-Canada newsrooms that do not exist for any other news organization in this country. In doing so, it puts CBC at a disadvantage compared to its competitors, undermines its ability to do journalism, and as a result, to inform the public.

As we noted in our brief, the bill would actually undo the clarity brought to the existing legislation by the Federal Court of Appeal in 2011. Since that court decision, we understand that CBC and the Information Commissioner have been successfully resolving outstanding complaints without friction or disputes. The lack of clarity in the bill's exemption would certainly be the subject of new court cases for years to come, and much of that at the public's expense.

In the meantime, the door would be open for access applicants to get a hold of information about CBC's confidential sources and news investigations. This would harm the public broadcaster's reputation as a trustworthy recipient of confidential information from whistle-blowers and sources. It would allow others, including competitors, to find out inside information about how CBC is pursuing stories, information that no other news organization in the country is obliged to share with anyone.

Bob Carty is here today to further explain how these provisions would hurt CBC news operations.

[Maryse Bertrand, Vice-President, Real Estate, Legal Services and General Counsel, Canadian Broadcasting Corporation]

Thank you, Mr. Chair.

Chairman, members of the committee, on behalf of CBC/Radio-Canada, I would like to thank you for the opportunity to be here today to discuss our concerns about Bill C-461 and its potential effect on the public broadcaster.

We are concerned that this bill as currently drafted will have some unintended consequences that may undermine CBC/Radio-Canada's ability to do its job as mandated by Parliament.

First, the bill would remove the current protections for journalism programming and creative activities under the Access to Information Act. There was much discussion in 2010 and 2011 about section 68.1, which is the exclusion for these activities, and how it needed to be clarified. In fact, it has been clarified. In November 2011, the Federal Court of Appeal made it crystal clear. The Information Commissioner can review documents held by CBC/Radio-Canada to determine whether the exclusion applies, except when it comes to journalistic sources.

I would like to read what the court of appeal said:

...the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.

That decision is extremely clear and at the time, both CBC/Radio-Canada and the commissioner expressed their satisfaction with it. The government, in its response to this committee's study, wrote that the decision, and I am quoting: “settled the dispute between CBC and the Information Commissioner”.

Indeed, since then, we and the commissioner have been working together to resolve the files which had been awaiting the court's decision. As you have heard from the commissioner, that work could be completed by the end of this year and we are collaborating closely with the Commissioner's Office in order to meet our goals.

This bill is proposing to do away with 68.1 completely and to replace this exclusion with an injury-based exemption. That change will introduce a great deal of uncertainty regarding its application as the commissioner, CBC/Radio-Canada and third parties will have to debate not one, but two elements now: whether the material is journalistic, creative or programming information, and secondly, whether the release would prejudice the corporation's independence. This will be the case even where there are confidential sources. We are loosing ground, going backwards, where sources are concerned.

Introducing an additional requirement of “prejudice to independence” which is untested in any current case law in Canada will inevitably bring us to a new level of uncertainty that will likely require several cases and years to resolve before a sufficient body of legal decisions exist to give us all the necessary guidance.

Parliament must balance the desire for more access to information for federal institutions, with the requirement that media organizations such as ours operate effectively and independently.

The specific protections in both the Broadcasting Act and Access to information Act for journalism, programming and creative activities, exist to ensure independence.

Incidentally, those protections are not unique. As the commissioner pointed out in the comparison document that she shared with you in 2011, public broadcasters in Ireland, England, and Australia, all have specific exclusions from their access to information laws for their journalism programming and creative activities, and all without any test in order to demonstrate a negative impact on their independence. Why would Canadians want to change that for their own public broadcaster? Why is such a change necessary when CBC/Radio-Canada is among the strongest performers under access to information?

Here are some facts about that. We have taken the lead among organizations in posting on our website much of what we release under access. That's in addition to the board minutes and the business travel and hospitality expenses that we post proactively. CBC/Radio-Canada earned an A from the commissioner in her most recent review for its performance under the act. Last fall, the corporation was recognized for improving transparency and accountability in the 2012 IPAC/Deloitte Public Sector Leadership Awards.

But that accountability goes beyond access to information. Every year we provide detailed financial information to the CRTC, which oversees our licence conditions. Every year the Auditor General of Canada signs off on our financial statements. Every five to 10 years he conducts a comprehensive special audit. In his most recent audit tabled in Parliament this year, the Auditor General gave CBC/Radio-Canada a clean audit opinion. That's the best result a federal agency can obtain.

We also report to our minister, to parliamentarians, and to Canadians through our corporate plan, our annual report, and our quarterly financial statements published on our website. We also have an independent board of directors, including an audit committee and a governance committee, all appointed by the government to oversee our budgets and our operations. It's their job to ensure that our programming and journalistic resources are being spent wisely.

This means while we are accountable under access to information for the general administration of our corporation, the law also draws the line at publicly releasing those things that would undermine our independence, or prejudice our competitive position—things like how much Peter Mansbridge gets paid, or how much we paid for the upcoming Olympics, or the details of our promotional strategies for new shows. For those things, it is the responsibility of our board of directors to protect both the public interest and the corporation's arm's-length independence.

There are two other unintended defects of C-461 I would like to mention with respect to proposed changes to the Privacy Act. These are the consequences I would now like to discuss.

First, the bill proposes to strip away the existing Privacy Act protections for journalism, programming and creative activities—but only for CBC/Radio-Canada. It would allow the subject of a CBC/Radio-Canada investigation to demand all information about them held by one of our journalists, even before we broadcast. Only CBC/Radio-Canada journalists would be subject to this provision. You can imagine what this would do to the investigative journalism that Canadians value.

Finally, with respect to salaries, C-461 proposes to make public the exact salary of the highest earners working for a government institution—rather than the salary ranges of their position, which is the current law. This has a much broader impact than just on CBC/Radio-Canada.

The Privacy Commissioner has established four tests to determine whether an invasion of privacy is justified, and one of those tests is whether there is a less privacy-invasive way of achieving the same end. The commissioner has put it this way:

...disclosing salary ranges or aggregate salary amounts for relevant groups, as opposed to specific salaries of individuals, could prove just as effective in achieving enhanced transparency and accountability without incurring the corresponding loss of individual privacy.

In our case, we would suggest that the combination of our salary ranges being public—they're available proactively and under access to information—the aggregate of our senior executive salaries being available in our annual report, and a specific salary being the express responsibility of our board of directors, all of that achieves the goal of enhanced transparency and accountability. It does so without undermining our ability to maximize public value in our highly competitive business environment where other broadcasters' salaries are protected.

Should CBC/Radio-Canada be accountable? Absolutely, and it is. Should there be oversight? Absolutely, and there is. But in addition to accountability and oversight, CBC/Radio-Canada needs to be able to do the job it is being asked to do by Parliament. In our view, this bill will not help us do that.

Thank you very much.

[The Chair, NDP, Pierre-Luc Dusseault]

That is not a point of order either.

I move that we now deal with the first point on our agenda and that we hear the testimony relating to Bill C-461.

In our notice of meeting, as you can see, Mr. Scott Andrews' notice of motion is listed and we are supposed to discuss it under the heading: “2. Committee Business”. So we will have the opportunity to talk about it more at length later.

For the moment, I am going the give the floor to the witnesses who took the trouble to come here to make a presentation on Bill C-461. And so I am going to let the representatives from—

[The Chair, NDP, Pierre-Luc Dusseault]

Welcome, everyone.

I would like to ask the members of the media to leave the room as soon as possible.

Pursuant to the Order of Reference of Wednesday, March 27, 2013, and the motion adopted by the committee on Monday, April 22, we are resuming our study of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

During the first hour, we will be hearing witnesses from the Canadian Broadcasting Corporation, the Canadian Media Guild, and the Professional Federation of Quebec Journalists. Without further delay, we will begin the meeting.

Mr. Andrews, you have a point of order?

[The Chair, NDP, Pierre-Luc Dusseault]

Thank you, Mr. Carmichael. Your speaking time has expired.

I would like to thank Mr. Rathgeber for his testimony today.

I would like to read a procedural motion to you concerning our procedure for the amendments. This is the motion:

That the proposed amendments to Bill C-461 be submitted to the clerk in both official languages no later than Tuesday, May 28, 2013 at 12:00 p.m., and that the amendments package be distributed to members as soon as possible.

The point is simply to clarify that amendments must be submitted to the legislative clerk before noon, May 28, since we will be doing clause-by-clause consideration at our May 29 meeting. Nothing prevents members from submitting amendments on the day we are doing clause-by-clause consideration. However, it is preferable to send them to the legislative clerk so that they can be distributed, and so the members of the committee can get a chance to see them prior to the meeting.

I need a motion. Is there a volunteer?

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

That's a very good question. I don't know.

Members may recall a scandal about a year ago in Alberta when there was a civil servant, then an employee of Capital Health, who had significantly abused his expense account. I'm sure Mr. Dreeshen remembers this story. The Government of Alberta has moved now to public disclosure with respect to expenses, and they are now posting expenses for ministers and senior bureaucrat online, but there's still no sunshine list.

It was that story of the bureaucrat with Capital Health in Edmonton that really started my thinking about disclosure and transparency, respect for taxpayers and taxpayers' dollars, salary disclosure, and reimbursed expenses disclosure. You see the product of that thought in private member's Bill C-461.

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

Thank you very much, Mr. Chair.

Thanks very much for being here, Mr. Rathgeber, and for presenting your Bill C-461 to us. I certainly appreciated your presentation and the outline that you went through as you explained what your intent was with the bill.

I know that you're well aware that this committee did an extensive study of section 68.1 of the Access to Information Act when we were doing an earlier study. We recommended that section 68.1 be amended to comply with the Federal Court and Federal Court of Appeal's decisions on the matter of 68.1.

Do you think that your bill responds to the committee's recommendations? Would you also tell me why you feel that way or not?

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

Thank you, Mr. Chairman.

I'd like to assure the members that if they don't have sufficient time to question me on this important piece of legislation, I'd be happy to return at any time.

Mr. Chairman, honourable members of the committee, it is an honour for me to appear before your committee this afternoon to speak to private member's Bill C-461. I have provided committee members with a backgrounder describing the contents and the need for Bill C-461, the CBC and public service disclosure and transparency act.

Members, the bill has two purposes. The first is to correct a deficiency within the current section 68.1 of the Access to Information Act, which provides an exclusion for information under the control of the CBC relating to journalistic, creative, and programming activities. However, this exclusion is then subject to an exception for matters of general administration.

This confusion of an exclusion thereafter limited by an exception led to litigation between the Information Commissioner and the Canadian Broadcasting Corporation, with both the Federal Court and the Federal Court of Appeal siding with the Information Commissioner, reaffirming her right to review decisions regarding access. The courts indicated that the drafting of section 68.1 was “not a model of clarity”, and moreover was a “recipe for controversy”.

I agree with this assessment, and so does this committee. In March of 2012, this committee tabled a report after a study of section 68.1 of the access act, and accepted the Information Commissioner’s recommendation that section 68.1 of the access act be repealed and that the exclusion be replaced with a discretionary exemption.

Private Member's Bill C-461 reflects the recommendation of this committee by providing a discretionary exemption on an injury- or prejudice-based test. Accordingly, any Canadian Broadcasting Corporation document that, if released, could reasonably be expected to prejudice the corporation’s journalistic, creative, or programming independence ought to be exempt from disclosure.

At second reading on this bill, members of the official opposition claimed that this legislation was somehow an attack on CBC.

Members, I assure you, it is not. In fact, this legislation is not about the CBC so much as it is about transparency and accountability.

The discretionary exemption based on an injury test approach expressly acknowledges that a public broadcaster must enjoy a degree of independence from government. But the Information Commissioner is not part of government; she is an officer of Parliament. I fail to see how allowing her to review decisions of the CBC regarding access to information requests constitutes an attack on the broadcaster. Similar to our collective roles as members of Parliament, the Information Commissioner plays an important role in holding government to account.

The second purpose of the CBC and public service disclosure and transparency act makes a substantive alteration to the Privacy Act. In removing the words “range of” before the word “salary” in the definition of exempt “personal information” in the Privacy Act, this legislation, if adopted, will allow for specific salary disclosure for the highest wage earners in the federal public service.

Currently only ranges of salaries are subject to disclosure, which is, I submit, adequate for low- and middle-income levels, but at the highest levels of income, the increments become so large as to become virtually meaningless.

For example, I have been advised that the current CEO of the Canadian Broadcasting Corporation earns in the range of $363,800 to $428,000. That range is $64,200, larger than the average taxpayer’s salary, and therefore, in my view, does not constitute meaningful disclosure.

Accordingly, if Bill C-461 is adopted and not amended, the specific salaries and responsibilities of upper management—defined in this bill as the lowest level of deputy minister, DM-1, and higher—will be subject to access to information requests, specifically salary disclosure.

This is important: this change would apply to the entire federal public service, all government institutions that are subject to the Access to Information Act. CBC is in no way being singled out.

The bill also expressly provides for disclosure of reimbursed expenses for all employees in a government institution.

Mr. Chairman, the government has signalled its intent to amend Bill C-461. With your consent, I would like to address both proposed amendments, although I appreciate that they have not yet been tabled.

The first is with respect to journalistic source protection. Some have argued that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained.

I absolutely agree that it is important that a public broadcaster, any broadcaster, be able to assure its confidential journalistic sources that their identity will not be disclosed. But I dispute that an absolute exclusion is either appropriate or practicable.

Firstly, the Information Commissioner has unlimited power under section 36 of the Access to Information Act to compel production of such documents and things as she deems requisite to the full investigation and consideration of the complaint. Moreover, under subsection 36(2) of the access act, it provides that no document can be withheld from the Information Commissioner for any reason.

Accordingly, I am skeptical that an exclusion can be drafted that could coexist with the Information Commissioner’s seemingly unfettered powers to compel document production. Members will recall that the current attempted exclusion in section 68.1 was the basis for protracted litigation between the Information Commissioner and the CBC.

Moreover, as the Information Commissioner herself testified when she appeared in front of this committee on March 8 regarding the estimates, journalistic source privilege is not absolute. The Supreme Court of Canada said so recently in its 2010 decision of R. v. National Post. The court held that journalistic source privilege is not a class privilege; it is fact-specific and therefore must be examined on a case-by-case basis to determine if and when it applies.

Who is to determine if Professor Wigmore's four-pronged test, which has been supported by the Supreme Court, is satisfied if the CBC is to be granted an absolute exclusion? The obvious answer is nobody. Is CBC to be made both judge and party to access to information requests? Certainly not.

As the Information Commissioner testified here two weeks ago, decisions of information officers must be reviewed, and as the Federal Court said in the Canadian Broadcasting Corporation v. Canada (Information Commissioner), “Disclosing records to the Commissioner does not amount to revealing them.” This is an important point. Members should not be misled into believing that having the Information Commissioner review documents will somehow lead to their disclosure. The Information Commissioner will recommend against disclosure when CBC has been able to demonstrate injury or prejudice.

The second matter that the Parliamentary Secretary to the Minister of Justice signalled the government wanted to amend was the benchmark at which federal public service salaries would become subject to disclosure. The parliamentary secretary indicated in the House that the government believes that the highest level of DM-4 would be a more appropriate benchmark than the lowest level of DM-1. In real dollar terms, amazingly this would move the disclosure benchmark from $188,600 to $319,900.

However, this is not the entire story. As senior public servants are entitled to maximum performance awards, otherwise known as bonuses, it is conceivable that at the DM-4 level, the said mandarin could earn a maximum performance award of up to a further 39%—although it would be discretionary. According to my math, if a DM-4 earns $319,900, plus a maximum bonus of 39%, which is $124,761, his entire compensation would be $444,661. However, if the government is successful in amending this piece of legislation, taxpayers will only be mindful that the DM-4 earns in the range of $272,000 to $319,900.

Members of this committee should ask themselves, does this constitute meaningful disclosure? In my view, it does not, and I strongly recommend that members resist the government’s attempt to gut this bill.

Mr. Chairman, in conclusion, Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, we are becoming laggards. Internationally, we are currently ranked 55th out of 93 countries in terms of our access laws. Moreover, the Centre for Law and Democracy, a think tank, says that Canada is falling behind all of the provinces and ranking behind most of them in terms of openness. Ontario, British Columbia, Saskatchewan, Manitoba, and Nova Scotia all have salary disclosure legislation that is more transparent than this proposed bill, even if you pass it unamended.

Mr. Chairman, in March 2004 a former government announced new policies that mandated publication of all contracts with the federal government over $10,000. I find it irreconcilable that proprietors and companies who contract with the Government of Canada for as little as $10,000 will have their names and contracts published on a public website, but that a senior federal executive or public servant earning over $440,000 is protected by Canada's privacy laws.

Members, again, I invite you to resist the government’s attempt to remove both the heart and the teeth of this private member's bill.

Transparency and disclosure allow taxpayers to compare the performance of an organization to the compensation given to the senior people running it. It allows taxpayers to know how their tax dollars are being spent. By allowing disclosure, the public will serve as a critical check on government expenditures and an effective deterrent to any government department or official tempted to treat taxpayers disrespectfully. Transparency, admittedly, is seldom in the interest of the government; however, it is always in the interest of the taxpayers whom we, as members of Parliament, represent.

Bill C-461, the CBC and public service disclosure and transparency act, promotes open and transparent government and holding government to account. It is also a small step, albeit a very small step, in improving the federal government's growing reputation for opaqueness.

Exclusions for government information prevent Canadians from holding their government to account, which is fundamental to democracy. Knowledge is power, and holding government to account demands that knowledge and information be available to Canadians. Holding to account leads to the establishment of trust—trust that there is proper stewardship over public resources. Opaqueness, however, leads to mistrust, or at the very least suspicion that there is not proper stewardship of public resources. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will lead to mistrust and suspicion.

As U.S. Supreme Court Judge Louis Brandeis famously said that sunlight is the best disinfectant.

Mr. Chairman, Canadians deserve to have the light shone on government and government information, and I encourage all honourable members of this committee to pass Bill C-461.

Thank you, Mr. Chairman. I look forward to members' questions.

[The Chair, NDP, Pierre-Luc Dusseault]

Welcome, everyone. Welcome to our 80^th meeting.

Pursuant to the Order of Reference of Wednesday, March 27, and the motion adopted by the committee on Monday, April 22, we are undertaking our study of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

We are already a bit late, and there will be a further delay later.

We have a witness here with us. This is Mr. Rathgeber, the sponsor of the bill.

Thank you for being here.

The commissioner will not be here, because of the lack of time. However we will have the opportunity of hearing our witness today, if the committee agrees.

You have a point of order, Mr. Angus?

[Suzanne Legault]

Mr. Chair, honourable member, we are preparing a written submission that we would like to present to this committee when the discussion starts on Bill C-461. We will put in there essentially the history of what has happened in terms of the current provisions in the legislation since it came into effect in 2007.

We will explain in there as well what happened really in the court cases, because the court cases were not about the substance of that provision; they were really about the fact.... CBC was arguing that because it was an exclusion, I did not have the right to review the records that were the subject of the complaints. That's why we ended in court.

So in all that period of time, from 2007 to February 2011, or perhaps it's November 2011—anyway, it's in 2011—I was not able to see any of the records related to these investigations. Subsequent to the Federal Court of Appeal, we were able to start collecting the records and to start doing the investigations.

What we will present to you will have an explanation of the differences between an exclusion and an exemption, and the different types of exemptions, not only in relation to the analysis for disclosure but also in relation to the powers of the commissioner when you have an exclusion or an exemption.

The other thing I will be able to provide to the committee is the fact that since 2007, we have looked at close to 1,200 cases in relation to CBC. We have 200 remaining. Out of all of those cases, no case has dealt with journalistic sources. I think that's an important fact to know when we consider possible amendments to the act and possible additions of exclusions.

My personal view as Information Commissioner, after something like six years now at the OIC, as assistant commissioner, as interim, and as commissioner, is that I do not support exclusions to the application of the act as a matter of principle. I really profoundly believe there should be independent review of government decisions on disclosure. That doesn't mean the information gets disclosed. We can still decide and recommend that the information should remain protected, as we do many times in terms of personal information or national security matters.

National security matters are the subject of a discretionary exemption under the act. There has not been any issue with the OIC's review and investigations and recommendations in relation to national security matters. I do not believe there should be a different perspective on documents that are located in the CBC. Journalistic source privilege is something that is protected in law as it is.

So this—not so briefly—is sort of my initial perspective on that. We are planning to provide a written document to the committee that will go through all of this information, because I think it's actually quite complex.

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

Thanks very much, Mr. Chair.

Thanks, Commissioner and Ms. Michaud, for being back with us again today.

We're going to have a shortened time with you, so I'll get right to my question.

I'm sure you've been following what this committee does, and you probably know that Bill C-461 has been introduced in Parliament and referred to this committee after second reading. That bill amends the current exclusion for the CBC.

I know we've talked about this before. Can you please tell us a little more about your views on the current exclusion under the act?

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I would like to extend a warm thank you to my colleague for her welcome at the start of my speech. I must say that she is very tolerant, because she was quite hidden behind a barricade.

Her question is entirely in keeping with her conscientiousness and her meeting, yesterday, with people who were concerned about journalistic freedom of expression. It is crucial.

All journalists have the right to hope for access to an objective desk and to tell stories that reflect reality as they perceive it in their work. It is extremely important and worrisome to see that it is not just on environmental issues that we look like dunces on the international scene; we look bad on this issue, too.

The bills that have been introduced recently, including Bill C-461, clearly stem from a narrow-minded vision, a relentless attack on a corporation—

CBC and Public Service Disclosure and Transparency Act

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-461 under private members' business.

The House resumed from March 26 consideration of the motion that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.

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

Mr. Speaker, I thank all hon. members from all sides of the House who have participated in the debate regarding private member's Bill C-461.

Let me start by dispelling some of the concerns from my friends from the New Democratic Party. This bill is not an attack on the CBC. I wish they would assess the statute on its face rather than developing conspiracy theories as to why we are promoting it.

Section 68.1 of the current Access to Information Act has been determined by two courts, including the Federal Court of Appeal, to be unworkable. It creates an exclusion and then an exemption to that exclusion, which is a recipe for controversy. It led to expensive litigation and ultimately the Federal Court of Appeal and the federal trial court agreeing with the Information Commissioner that the Information Commissioner must be able to see the documents in order to determine whether disclosure is appropriate.

I listened intently to my friend from Halifax, who did actually read the bill before she spoke. She was curious as to why an exclusion is not the best way to protect the independent broadcaster. The reason is quite clear. It is section 36 of the Access to Information Act that sets out the powers of the Information Commissioner, and they are broad. She may summon and enforce the appearance of persons. She may receive affidavits, take evidence on oath, and she can compel the production of documents. More than difficult, it is borderline impossible to create an exclusion that could coexist with the broad powers of the Information Commissioner that are set out in section 36.

What is the way to balance the rights and needs of an independent public broadcaster and the law that says the Information Commissioner ought to be the one to arbitrate disputes? It is the prejudice test. I did not make up the prejudice test. The prejudice test was cited by the Information Commissioner before the access and ethics committee when she testified at its study on section 68.1. Section 68.1 is so flawed that a standing committee of Parliament did an entire study on it. The Information Commissioner recommended a prejudice test, such that if it can be shown that release of the documents would be injurious to a party's independence then disclosure is inappropriate.

It was interesting to hear the comments from the member for Winnipeg Centre. He talked about what cabinet would think about this bill if it came to committee. Then we heard from the Parliamentary Secretary to the Minister of Justice that the government was going to propose amendments to the bill. They do not want to disclose the salaries of DMs 1, 2, 3 and 4 or the comparable salaries of any other government appointments. If I were a member of the opposition, I would think very seriously as to why the government was going to propose amendments to this bill to exclude all income levels under and less than the DM 4 level.

With respect to this bill, my friend from New Brunswick had the most sage speech. As many members know, he was the former director of the Canadian Taxpayers Federation and understands very well that the concepts of transparency and openness are fundamental to democracy. We in this chamber are members of Parliament. Our job is to hold the government to account; that is, the departments, the agencies and the crown corporations. We cannot hold government to account when government institutions withhold information from us or from other agencies or from other Canadians who are requesting it. Knowledge is power and the only way we can get knowledge is if we have access to the information.

Lastly, this is far from an attack on the Canadian Broadcasting Corporation. The salary disclosure requirements of this bill are to be applied in the entire federal public service. CBC is in no way being singled out. Transparency is not the enemy of a public institution, far from it. Transparency leads to trust. There is trust that there is proper stewardship over public resources. The people at CBC should want to disclose. They should want this legislation so that Canadians can once again have the trust that they are the proper stewards over public resources.

I encourage all members to support Bill C-461, and in an unamended form, when it goes to committee.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, since I have only six minutes to speak to Bill C-461, I would simply like to say that I am strongly opposed to it.

In my opinion, it is another ridiculous, ideology-driven bill, which the Conservatives are using to muzzle institutions that are not to their liking. Under the guise of increasing transparency at the CBC, the Conservatives are using this bill to weaken the public broadcaster.

The bill's sponsor, the member for Edmonton—St. Albert, already shared his true feelings during the last election when he said the following to a local chamber of commerce:

I don’t know that we need a national broadcaster in 2011. … We have to wean them off … of the taxpayer’s dollar....

In December 2011, he told the Globe and Mail that he and other Conservative members were urging cabinet ministers to make more aggressive cuts to the CBC. What the Conservatives are really trying to do with this bill is dismantle the crown corporation.

We need to understand that this underhanded attack on the public broadcaster is widely supported in Conservative circles and by this government. In June 2003, when the Broadcasting Act was undergoing a thorough review at the Standing Committee on Canadian Heritage, the Canadian Alliance—the precursor to the Conservative Party—clearly stated its policy on the public broadcaster in a dissenting report that said: “We would significantly reduce CBC operating subsidy by commercialization of CBC television.”

The Prime Minister himself has said on several occasions that he wanted the CBC to get to the point where it no longer needed parliamentary subsidies. In May 2004, for example, he made the following statement:

I’ve suggested that government subsidies in support of CBC’s services should be to those things that…do not have commercial alternatives.

As we can see, the Conservatives' aversion to the public broadcaster is in their DNA. The Conservatives think that the ideal public broadcaster is a dying, insignificant and insipid broadcaster. It is also important to note that the Conservatives started undermining the public broadcaster as soon as they had a majority government. In 2012, they announced $200 million in ideological cuts to CBC/Radio-Canada. These cuts had an impact on the quality and quantity of services, on both the information and the entertainment sides of things. Let me give you a few examples.

The mandate of RDI and Espace Musique was reduced in the regions. Regional programming was affected, especially in French-language minority communities. Regional stations' music libraries will be eliminated. Broadcasting by all general television stations will be centralized, and half the air time reserved for the regions on Espace Musique will be cut.

Of course, programming will get hit. On French television, dramatic series will have fewer episodes, there will be fewer major productions and management intends to reduce RDI's production costs. I should also mention that proposals for specialized sports stations and children's programming will be scrapped. There has also been a lot of disruption to CBC radio.

Canada's international influence also melted like snow in the hot sun when the government axed Radio Canada International. In all, 650 people will lose their jobs by 2015, including 243 employees of the French service. When the Conservatives brought down their budget last week, they took the opportunity to further reduce the CBC's budget by cutting an additional $42 million.

The NDP believes in a strong, independent public broadcaster funded in part through ad revenues and in part by parliamentary votes in recognition of the service it provides to Canadians in terms of sharing local information and promoting our cultural wealth.

The Conservatives' budget cuts are forcing the CBC to rely more and more on ad revenues and to operate like a commercial broadcaster. The government is asking the public broadcaster to compete with major conglomerates such as Bell Media, CTV and Quebecor, without ensuring that there is a level playing field.

I would like the sponsor of the bill to answer the following question: if his real objective is transparency, why should the CBC be the only one to have to disclose its production costs? Why not ask the same of private broadcasters, who also receive public funds?

I oppose this bill, which is a backdoor attack against the CBC, because Bill C-461 targets the capacity of the crown corporation to remain competitive and independent. What is more, this bill is unnecessary since the crown corporation has significantly improved its access to information practices since the 2006 bill on government accountability. Members will recall that it was through the collaboration of the NDP and the hon. member for Winnipeg Centre that the CBC was brought under the Access to Information Act. I want to reiterate my opposition to this bill and my support for the CBC and the work that it does.

[John Williamson, Conservative, New Brunswick Southwest, NB]

Mr. Speaker, it is indeed a pleasure to rise and speak at second reading of Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information) or, as the bill's short title makes clear, the CBC and public service disclosure and transparency act.

I would like to respond to some of the criticism I have heard tonight. The bill would actually bring the CBC in line with other crown corporations. Exemptions that exist for the CBC that have been abused would be eliminated.

There are many reasons to support the bill. I would like to take a moment to highlight some of mine. As someone who has used Canada's access to information laws to review government spending, I am already familiar with the importance of such laws to get at information either that governments may report to the public out of context or, at worst, that they wish to hide.

These laws are important because they hold governments accountable. How exactly does this happen? When decisions are subject to review, individuals throughout the public service are much more likely to follow rules and reflect on how tax money is spent. When they do not, the results cannot be quietly locked away safe from public review. For this reason, sunshine in government is a useful disinfectant for unscrupulous behaviour.

Let us look at the bill's specific reforms. First and importantly, as the bill's name suggests, it would bring greater accountability to the CBC. I believe it is the duty of government to be transparent and open. Canadians need to know that when household income is taken away from them in taxes it is being put to good use. Yet a problem currently exists. There is a loophole in the Access to Information Act, which was created for the CBC, whereby this news, culture and entertainment company can refuse to release any documents it believes are inadmissible.

Aside from going through the courts, there is no adequate oversight review. This loophole has been exploited by the CBC to refuse replying to information requests. Specifically, the act currently states that:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

This means the CBC is not required to provide any transparency except for information about its general administration. However in turn, it is expected, actually required, to report on what is covered. Yet the CBC has erroneously applied its exemption broadly and at times refused to provide information that it is obliged to, in my opinion. It has used that clause to delay or deny the provision of information even to the Information Commissioner, whose job it is to determine whether or not Canadians have a right to access requested information.

In this case, the matter went to the court. Both the Federal Court and the Federal Court of Appeal agreed that CBC was wrong to withhold certain documents from the Information Commissioner. The courts also found that the wording of that section of the Access to Information Act is less clear than it could be and “a recipe for controversy”, which is exactly what it delivered.

The sponsor of this bill is responding to a flaw in the current law as identified by the courts. The Information Commissioner is correctly asking that greater onus be placed on the CBC to demonstrate that it could actually be harmed by releasing certain exempted documents, and the public interest should be weighed in each decision.

The NDP member for Halifax just stated that we are actually already on the same page as other countries, but that is not quite accurate. Australia, Ireland and the United Kingdom all allow independent bodies to review documents held by their public broadcasters. I believe it is time Canada did the same, because right now under the law, it is the CBC that acts as judge and jury in these cases. If people want to appeal, they have to go to the courts, which is expensive and time consuming. However, neither the commissioner nor any other taxpayer should be forced to go to the Federal Court to resolve disputes.

Bill C-461 would redefine the exemption clause for the CBC with what is called an injury test. This means that unless disclosing the information could reasonably be expected to prejudice CBC journalistic, creative or programing independence, the information could not be withheld. Also, in line with other areas of the federal government, the CBC would not decide what is covered and what is not.

Explicitly giving an officer of Parliament, in this case the Information Commissioner, the authority to adjudicate whether or not this injury test is met is wise public policy because it would ensure that an independent third party ruled on what could or could not be made available to the public. This would help avoid the possibility of lengthy litigation processes that could result in further information being effectively denied through delay.

In effect, what both the member for Moncton—Riverview—Dieppe and the member for Halifax are stating today is that they do not trust the Information Commissioner to resolve these disputes; yet the Information Commissioner looks at all sorts of confidential government documents and in those cases is trusted to decide what is to be released and what is not to be released.

I believe this clause would not expose media sources to prying eyes or impact the CBC's independence, and frankly, we do not want it to.

If anyone argues the CBC should be exempt, as I have heard tonight, I would ask why others should not be exempt. I ask that rhetorically, because I do not believe federal government agencies should be exempt from oversight. Supporters of the CBC, of which there are many, might believe the mother corporation is in a unique position compared to other crown corporations, but it is not. At the end of the day it spends public dollars, and Parliament must hold all such agencies, departments and crown corporations accountable without fear or favour.

Second, the bill would amend the Privacy Act to allow for the public disclosure of specific salaries and responsibilities of anybody who earns more than $188,600 from the federal government.

Nova Scotia and Ontario require the disclosure of the name, salary and job title of anybody making $100,000 or more from the respective provincial governments. These sunshine lists hold those governments accountable for the salaries given to the top bureaucrats, civil servants and anybody else who earns six figures or more per year from the government. Manitoba, incidentally, sets its transparency level at a mere $50,000.

My own province of New Brunswick has a disclosure limit at $60,000. What is more, employees receiving in excess of $10,000 in retirement are subject to public disclosure. These numbers are reported annually, and this has been a good thing for taxpayers and open government.

Right now the legislation of the Government of Canada only allows for the disclosure of a very broad, very vague and almost entirely unhelpful salary range.

As my hon. colleague, the member for Edmonton—St. Albert, found out, the salary range for the current CEO of CBC is somewhere between $358,400 and $422,000. However in addition, generous bonuses can be paid to the CBC president and other civil servants. At most, bonuses in the federal system can reach 39% of the basic salary, yet taxpayers have no idea if a bonus was paid or what amount was paid.

I will note that, again, when my hon. colleague from Moncton—Riverview—Dieppe set his threshold level on behalf of the government he could not even bring himself to tell us what that level would be, so let me tell the House. If we were to go with the top end, as the government is proposing, it would mean a disclosure level at about $444,000, which is a level that would effectively neuter this legislation.

All my colleagues in the House, as well as other places, are required to disclose their salaries. They are public knowledge, and rightfully so. I believe the amount in this legislation is set too high. Instead, it should start at the rate of pay for members of Parliament, which is currently $157,731, an amount incidentally that has MPs already in the top 2% of all Canadian income earners. This figure is well higher than the minimum limits we see in provinces with sunshine laws.

With the passage of the bill, Canadians would be able to shed new light into some of the currently dark corners in the civil service. This is not to suggest something untoward is happening in the corners that are exempt from public oversight, but the fact is that we do not know. We and all taxpayers have a right as citizens to ask and receive answers. Taxpayers are, after all, the ones footing the bills. I hope no person elected to this chamber will argue that some areas of government ought to be exempt from accountability.

That is why I will be supporting Bill C-461, and that is why I hope my hon. colleagues will do the same.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I have served with the member for Edmonton—St. Albert on various committees, including in the last Parliament when we served together on occasion on the justice committee. I respect his work because he speaks his mind and his opinions are based on his values. However, just because I respect his approach to Parliament, it does not mean that I always agree with him and this is a case where I do not agree with him and am opposed to this bill. In trying to figure out where I stood on this bill, I did a bit of an analysis, which I would like to share with everybody today.

The first step is to look at what the bill would do. I want to focus in on section 68.1 of the Access to Information Act. Section 68.1 reads:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

There is an exclusion here. Why the exclusion? These sections are drafted to ensure that a public broadcaster's administrative functions are not excluded from the reach of FOI, or freedom of information, and accountability. It is the program and content activities for the public broadcaster that need to be distinguished and excluded. It is an acknowledgement of the separation between media activities and other activities as a crown corporation. This bill proposes to amend the Access to Information Act to repeal that exclusion for CBC for information related to journalist, creative or programming activities and replaces it with an exception.

When considering a section like this, it is useful to compare ourselves to other jurisdictions to see what is happening in similar situations in other countries. The public policy goal of an exclusion like this one is to ensure public accountability, while protecting independence and integrity. Let us take a look at the other jurisdictions to see how they strike that balance.

We have heard that other countries have similar legislation, like Australia, and have had this legislation for years. In fact, it has been well over 20 years.

Since 2000, the Irish public broadcaster, RTÉ, has been subject to the Irish freedom of information act in relation to its administrative activities, but it is excluded in relation to a range of material, including information gathered or recorded for “journalistic or programme content purposes, whether or not a programme is produced on the basis of such information, or is broadcast”. RTÉ's exclusion also extends to other activities like the identification of sources of information, editorial decision making about program and schedule content and post-transmission internal review and analysis of any program or schedule of programs broadcast.

Since the U.K.'s freedom of information act was enacted in 2000, the British Broadcasting Corporation, the BBC, has been subject to the act except in respect of information held for purposes of “journalism, art or literature”.

The first step of the analysis is to explain the purpose of this exclusion and it seems we are on the same page as other countries with public broadcasters.

Let us look at the change and figure out what exactly this change would do. I will read clause 18.2 of Bill C-461, which states:

The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclosure could reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.

It is important to note that when the Federal Court of Appeal, when it has been asked to review whether documents should be released, it has settled matters such that both the Information Commissioner and the CBC have supported. At best, this bill is gratuitous. The access to information system was already working and the CBC was often proactive in its disclosure of information when it came to things like expenses. At worst, this bill is an attack on the CBC's viability as a journalistic source that puts its investigations at risk by jeopardizing its ability to protect its sources.

The attempt to reverse this burden of proof, to force the CBC to prove that a request is “injurious”, is part of an ideological attack on public broadcasting in Canada. Further, the protection that will remain is defined narrowly, too narrowly to adequately protect journalistic work. These changes put an unjustified burden on the CBC and will make the CBC vulnerable to unfair and compromising requests, not to mention expensive legal battles.

What is clear is that the integrity of a journalistic entity that is free of corporate influence is in jeopardy.

Canadian Journalists for Free Expression has weighed in with a statement. If people are listening at home, they can find that statement on the group's website. In its statement, it writes that Bill C-461 would:

...significantly weaken the CBC’s ability to deliver a key component of its mandate: carrying out public service journalism and creating programming completely independent from the government. That mandate was given to the CBC by Parliament decades ago and remains in force. To carry it out, CBC journalists must be able to conduct research and prepare programs without pressure to disclose the results prematurely or surrender operational details. The corporation must be able to acquire broadcasting rights and creative content without being required to disclose negotiating positions or strategy. In this respect, arm’s-length public broadcasters differ from other government departments. That is why other parliamentary democracies protect these broadcasters with exclusions like the one current in section 68.1 of the ATIA. Canada should do no less.

The CJFE goes on to describe what effect this attack on public journalism would have on the quality and breadth of news Canadians would be able to expect from the CBC. They say:

...what whistleblower would approach a CBC reporter? How could CBC journalists in good faith promise to protect their sources? How, both commercially and ethically, could the CBC sustain any investigative journalism if the process and the research could be revealed to CBC competitors or to the subjects of CBC investigations? In fact, a chill would fall upon CBC journalists and the broadcaster’s ability to produce journalism with integrity would be seriously jeopardized. A bill that ostensibly aims to increase accountability would destroy the public broadcaster’s ability to hold government and the powerful to account.

I have heard some of the debate in the House in relation to Bill C-461 over the past couple of months, and certain Conservative members have come forward to say that the bill does not single out the CBC. I beg to differ. The bill is called the CBC and public service disclosure and transparency act, so it is pretty clear that it is about the CBC. It applies to the CBC and no other organization. That is pretty settled.

I have also heard statements saying that the bill is not an attack on the CBC. The member who brought the private member's bill forward is on the record saying:

I don’t know that we need a national broadcaster in 2011.... We have to wean them off...of the taxpayer's dollar....

In my opinion, this has nothing to do with transparency and everything to do with attacking the CBC.

Journalistic freedom is the foundation of democracy. It is unconscionable that the Conservatives are attacking public investigation. The CBC has an important role to play in investigative journalism. My New Democrat colleagues and I believe in a strong and independent public broadcaster. It is essential that the CBC remain a trusted news source on which Canadians can rely.

Bill C-461 should be defeated.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to have this opportunity to speak for a few minutes on the subject of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information).

I begin by thanking the member for Edmonton—St. Albert for his efforts to bring forward this issue. Bill C-461 promotes greater transparency and accountability, not only in relation to CBC but also in relation to the public service as a whole.

Overall, the government agrees with what Bill C-461 is trying to accomplish. The public has a right to access information from the CBC as it receives funding from the government. The public has a right to find out the salaries of the very highest paid individuals in government institutions. These are important things the public needs to know.

That being said, we have looked at Bill C-461 and we believe it requires certain modifications. Therefore, the government will propose amendments. These amendments will not hinder or detract from the main goal that Bill C-461 tries to achieve.

Before I describe these amendments the government will propose, I will begin by spending a bit of time describing for the House what Bill C-461 seeks to achieve. I will first focus on the part of Bill C-461 that relates to the CBC.

Currently the Access to Information Act only allows a requester to access records that deal with the general administration of the CBC. Only requests that deal with such records will be considered and processed by the CBC. As a result, any record that contains information that relates to the journalistic, creative or programming activities of the CBC are excluded from coverage by the Access to Information Act. This means that if the CBC receives an access request that involves any records containing information that is journalistic, creative or programming activities, these records are not even processed as the access regime simply does not apply to them.

Generally speaking, broad exclusions are undesirable in an access to information regime from the perspective of openness and transparency. The current exclusion for the CBC is a problem because it excludes too much information. It is unclear and it also raises problems of interpretation and of application. In fact, it led the Standing Committee on Access to Information, Privacy and Ethics to undertake a study of the CBC's application of the exclusion. It also led to a court dispute between CBC and the Information Commissioner. I will come back to this later. Bill C-461 proposes to replace this problematic exclusion with an exemption, which will be more beneficial to the access regime.

When I say that the current exclusion covers too much, the point I am trying to make is that not all of the CBC's journalistic, creative or programming records are so sensitive that they deserve to be excluded from coverage by the Access to Information Act. However, I am certainly not suggesting that these CBC records should automatically be disclosed to a requester. On the contrary, Bill C-461 proposes that the CBC can protect these records with an exemption that can be used at its discretion.

The exemption would contain an injury test specific to CBC. That injury test would allow the head of the CBC to decide to protect the information from disclosure if it was determined that disclosure would be prejudicial to the CBC' s journalistic, creative or programming independence.

These activities are at the core of the CBC's mandate as a broadcaster and it is recognize that disclosure of information about such activities may hamper the CBC's ability to function in such a competitive environment. The requirements to demonstrate harm to a category of activities in order to protect information from disclosure is the type of exercise that many government institutions already perform on a large number of federal government records in the course of responding to access requests.

There is a secondary benefit to the changes proposed by Bill C-461 with regards to the CBC. It will allow for a very important review of the role by the Information Commissioner, an independent officer of Parliament with the responsibility of overseeing the application of the Access to Information Act. Review by the Information Commissioner of CBC's records was the subject of the dispute I mentioned earlier. The exemption for records of the CBC that Bill C-461 proposes will make it crystal clear that the Information Commissioner can carry out her crucial oversight role in relation to the CBC.

I will speak now about an exclusion for confidential journalistic sources of the CBC. While I have spoken now about the problems caused by an overly broad exclusion, there is no doubt that an exclusion offers the highest level of protection for information. There are some limited and specific categories of information that should be covered by a targeted, well-defined exclusion.

With respect to Bill C-461, it is the government's belief that information that would reveal the identity of confidential journalistic sources should continue to be excluded from the act.

When we previously spoke about Bill C-461, we noted that the ability to protect the identify of confidential journalistic sources was a pillar of journalism. Individuals who are confidential sources of information are understandably nervous about being identified. If a broadcaster cannot offer them complete guarantee of anonymity, they will go to another broadcaster or journalist.

As Bill C-461 is currently drafted, it would not allow the CBC to provide its confidential journalistic sources with an ironclad guarantee of continued anonymity. This is because the proposed new exemption in Bill C-461 contains an injury test that can result in their identity being revealed if the test is not met and will allow the Information Commissioner to review documents that identify them.

The position that we are taking with regard to the confidential journalistic sources is consistent with the 2011 Federal Court of Appeal decision on this matter. The court considered the CBC's exclusion and concluded that for journalistic sources, the exclusion was absolute and the Information Commissioner could not examine such information.

Bill C-461, with the amendment proposed by the government, would essentially reflect the outcome of the decision of the Federal Court of Appeal. I will stress that both the CBC and the Information Commissioner expressed satisfaction with the outcome of that decision.

I will speak now about disclosure of information on officers or employees of government institutions.

The next area where Bill C-461 would seek to increase openness and accountability is with regard to the expenditures of public money. Bill C-461 would increase openness and accountability by requiring more disclosure on expenditures in two areas: one would be the reimbursement for work-related expenses received by public servants; and the other would be the exact amount received by the highest paid individuals in government institutions.

Let me start with the issue of exact salaries.

In the public sector, job classifications are accompanied by a salary range within which someone is paid. Where they specifically fall within that range depends upon a number of factors, including time spent in the position and performance reviews.

Until now, the only information regarding salaries that could be made available to an access requester was the salary ranges of individuals enquired about. This salary range, along with other disclosable information, was enough to give a requester a good idea of how much an individual was remunerated by the government. We believe that being able to obtain salary ranges for the majority of public servants pursuant to an access to information request is appropriate.

In 2006 the coverage of the Access to Information Act and Privacy Act was expanded to a number of crown corporations. This change was brought forward with the Federal Accountability Act. Information on parent crown corporations and their wholly owned subsidiaries is now accessible under the Access to Information Act and Privacy Act. As a result, the Access to Information Act and Privacy Act now include a number of government institutions whose employees and officials are much higher paid than the vast majority of civil servants. We support the idea put forward in Bill C-461, that the highest paid individuals in the public sphere should have their exact salaries disclosed.

However, we propose an amendment to permit the disclosure of the exact income of those individuals that exceeds the highest level of the deputy minister level. This is a more practical level to administer than pledging the threshold in the middle of the deputy minister classification as is currently in Bill C-461. It also better reflects the intention of disclosing the income of the very highest paid individuals.

This is a sensible amendment as it crystallizes the fundamental idea that if an individual, in the course of their employment, incurs an expense and is compensated for that expense by the government, then that information should no longer be treated as personal information. The more noted expenses, when they are paid back to the employee, will be known by all. It is important to be transparent because we want the government to be money wise and only spend money where it is necessary.

Both the provisions of Bill C-461 requesting exact salaries and reimbursement of expenses go toward furthering transparency in the mechanisms of government. Individuals and institutions that are trusted with the public purse should be able to demonstrate where and how money is being spent.

The government supports Bill C-461, with the amendments I have described, because it would go toward achieving the transparency and accountability sought.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I appreciate the opportunity to address the House on Bill C-461, which is an interesting piece of legislation. At the end of the day, one may question whether the bill will be sent to committee, but it brings up what I believe are very interesting issues that are important to discuss.

I was listening to the previous member speak to the issue of CBC, its legacy and how Canadians perceive it today. I truly believe that Canadians from coast to coast to coast tune in to CBC radio and television networks on an ongoing basis. The services that CBC provides to Canadians are second to none in terms of they type of programming and ensuring that there is a high level of Canadian content, which is very important for the industry here in Canada and taking the talent we have to the next level.

Not only does CBC have direct benefits for the viewing and listening audience here in Canada, but we often find people abroad and around the world tuning into CBC Radio. Now because of Internet technology, we find that more and more people are tuning into the websites of CBC.

Historically, there has been a high level of respect for the integrity of news and other types of programming, particularly documentaries, that CBC has aired over the years. Members will find that Canadians trust and want to see that continue because it is very important in terms of our own heritage as a country. We need to be able to feel comfortable in knowing that we have an industry that will continue to be there in a very healthy fashion.

Let there be no doubt, CBC does afford the opportunity for Canadians to have more than one radio or TV broadcasting program. It provides competition to the other industry stakeholders. It is not like we have 20 or 30 different broadcasting networks. Canada is not in a position to have those kinds of numbers. We have two or three private companies that have invested hundreds of millions of dollars, such as CTV, Global and Sun Media, which are healthy competition for the CBC.

I think we have to be very careful that we do not buy into what I believe, and many Canadians believe, is a hidden agenda from the Conservative right. There are many within the former Reform Party, now Conservative Party, who believe that Canada would be better off without the CBC and that there is no need for it. Therefore, generally speaking, people need to be aware that there are those, even within the House, who would like to see the demise of CBC TV and radio.

I am not one of those people. I believe in the CBC and the services that it provides to Canadians. Members will find that the Liberal Party of Canada believes in the valuable contributions of the CBC, whether from its broadcast news, other types of broadcast programming or its radio division and the services it provides to not only Canadians here in Canada but abroad as well. At the end of the day, the Liberal Party will stand up for the CBC and will fight to ensure that it is going to be there for future generations.

That said, the Liberal Party also believes in accountability and transparency. It is interesting that the bill attempts to deal with deputy minister level one salaries and higher. That is an important aspect of the bill.

Transparency and accountability are important. We know that the government, probably more than any other government that predates it, is somewhat reluctant to provide what we believe is important information, which Canadians should have the right to know. There is no hidden agenda there. We do believe there needs to be more transparency.

It is interesting that the bill has come before us at a time when we are debating the budget. For members who were here listening to the leader of the Liberal Party talk about transparency and the budget lines in the tables, there was a question posed about those line-by-line comparisons that used to be there.

In the name of accountability and transparency, we would argue that the government has done a disservice in terms of providing that transparency and accountability. That is why we find it interesting that we now have a private member's bill asking for more transparency and accountability from within the very Conservative cabinet.

I suspect that if the bill does happen to pass out of the House and is sent to committee, one of the areas of discussion would be in regard to cabinet and to what degree they are prepared to ensure there is more accountability and transparency in terms of freedom of information access requests. The government goes out of its way to avoid that sort of accountability, yet many of its members are calling for more accountability with the CBC. I will have to be excused for not necessarily believing that the government is being genuine on the issue.

At the end of the day, Canadians as a whole cannot be blamed for being suspicious of anything the Conservatives want to do in regard to the CBC. This is because a very high percentage of Canadians believe in the value of the CBC. They see what the Conservative record has been. They see the petitions that have been introduced in the past number of months in regard to targeting the CBC, and some of the comments that have been put on the record in regard to the CBC. There seems to be this opinion that there is this pent-up frustration from many of the Conservative, or maybe the past Reformers within the party.

There is a potential hidden agenda there that is not healthy for our country, if we believe in the preservation of heritage and the promotion of the role that CBC has played both in the past, in the present and hopefully well into the future. This is why we approach it with some skepticism.

On the other hand, we do believe in the merits of ensuring that there is more transparency and accountability with respect to the ministers and the government as a whole. It would be nice to see the government approach things in a more accountable and transparent way and be clear in terms of the future of the CBC from the government perspective.

If the government was more transparent in regard to the CBC and if it had a long-term vision that it was prepared to share with Canadians, maybe then there would not be as much skepticism.

I suspect the freedom of information request that would be filed if this legislation were to pass would come from CBC's competition and many of the Conservative government members. This is really where the drive for this additional information is coming from. That is why I would caution members on what we will be voting on and to be very suspicious and watchful if it ends up going to committee.

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, I rise in the House today to express my opposition to Bill C-461. People who defend this bill will say that its purpose is to improve the CBC's transparency. My New Democrat colleagues and I want to show that it is actually a sleight of hand designed solely to target our national broadcasting service while weakening it in the face of its private competitors.

It is important to shed light on the Conservatives' real intentions. With this bill, the Conservatives are trying to discredit the CBC through insinuations that are not only unfounded, but also wrong. We wonder why are they doing this. Is it to punish our national broadcaster, whose only crime was apparently being too dedicated in its duty to inform Canadians, especially when it comes to the actions of the Conservative government?

With this bill, the Conservatives want to imply that the CBC operates opaquely and apparently has something to hide from Canadians. For example, the government wants us to believe that the CBC's most senior executives are hiding their salaries from Canadians. That is absolutely not the case. Every Canadian can go to the CBC website and find the executive pay scale. All you have to do is click on the “Reporting to Canadians” tab.

The hon. member for Edmonton—St. Albert said that this information is worthless since we are talking about a pay scale and not a specific salary. Since exact salaries constitute private information, I would like to remind hon. members that no Canadian broadcaster is required to provide any information about its executives' salaries. The CBC therefore demonstrated great transparency by providing its executive pay scale.

Next, I would like to draw the hon. member for Edmonton—St. Albert's attention to the fact that the pay-scale method is necessary in a society that recruits its executives from a competitive market. The Conservatives always like to claim that they are the only ones who understand how the market works. They should therefore understand this basic principle.

What is more, salary amounts are decided by the board of the CBC, whose members are appointed by the Conservative government itself. In that sense, I really do not see how the Conservatives can continue to insinuate that there is any sort of problem with the income of CBC executives.

The Conservatives are also speaking out against a system of exemptions for the CBC. They are suggesting that there is no justification for such a system. Must I remind the government that there is no other public broadcaster in Canada? Is it not then natural for the legislation governing a public broadcaster to make specific reference to the CBC? Clearly, there is a discretionary exemption, as the Conservatives call it, since the CBC is the only company involved.

I want to remind the Conservatives that they are in no position to lecture the CBC on transparency. For example, every time the CBC refused to disclose documents in order to preserve journalistic confidentiality, the corporation sent the documents to the Information Commissioner for her to verify their protected nature.

Finally, it is my pleasure to remind the House that the Information Commissioner herself gave an A, the highest grade in access to information, to the CBC. The same cannot be said of the Conservative government, which has been criticized more than once by the same commissioner for its overly high rate of refusal, for its unreasonable response times, and for its excessive tendency to censor information.

Therefore, since we already know the salary grid of the CBC's managers and since it has shown exemplary transparency, what is the real aim of Bill C-461 and what will its consequences be if adopted?

First, it seems clear that the purpose of this bill is to attack our national broadcaster.

Ever since the last election, the hon. member for Edmonton—St. Albert has been on a crusade against the CBC. He has even gone so far as to say that Canadians do not need a national broadcaster. Fortunately, that is not his party's unanimous position, and the members of the Conservative caucus know that any attempt to suppress the CBC will fail. They know that Canadians treasure the continued presence of an independent information system. They know that Canadians love the CBC.

Noting the opposition to his bill, the same member has tried to attack the CBC's financing. First he suggested removing public subsidies. Realizing that his position was marginal, even within his own caucus, he has now resigned himself to trying to discredit an institution that is considered a model of transparency.

In fact, one of the primary goals of this bill is not to clarify the law, but to set off a spurious debate that will give him an opportunity to suggest that there is something fishy about the CBC's operations. And yet, the truth is that the CBC is already subject to many more transparency rules than its competitors.

What is this if not the Conservatives' mistrust of the CBC? It is no secret that the government sees the CBC as an adversary.

Why is the CBC seen as a threat? It is seen as a threat because it is still at arm's length from political power and the Conservatives have a hard time with that.

This is their logic: if the general public will not allow them to directly hurt the CBC, then they will interfere in how it does business and make it harder for the CBC to be competitive.

That is exactly what will happen when this bill is passed.

As if draconian budget cuts were not enough, the Conservatives now want to add as much of an administrative burden as possible to the disclosure of information.

With the passage of Bill C-461, requests for access to information will increase. These requests are not from Canadians wanting to know more about public spending. They come almost exclusively from certain members of the Conservative caucus and private competitors, their cronies.

Out of all the complaints regarding the CBC's performance in terms of access to information, 80% come from Sun News Network and its owner, Quebecor.

As a result, Bill C-461 seeks only to put the CBC at a disadvantage with respect to its competitors who are under no obligation to disclose information, even though they receive government subsidies.

In short, with this bill, the Conservatives are killing two birds with one stone. They are unfairly discrediting a corporation that continues to be exemplary despite budget cuts while threatening its independence and putting it at a disadvantage with competitors that they see as less of a threat.

We will be voting against this bill. It is nothing more than an ideological attack, another ideological attack, against the CBC, Canada's only public broadcaster.

The Conservatives should be proud of this institution instead of trying to destroy it at all costs.

The House resumed from February 12 consideration of the motion that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.

Canadian Broadcasting Corporation

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

Mr. Speaker, private member's bill, Bill C-461, the CBC and public service disclosure and transparency act, would correct a well-documented deficiency in the Access to Information Act, which allows the CBC to refuse to disclose documents if, in its discretion, it believes the documents affect its creative, journalistic or programming activities. This blanket exclusion would be replaced with a discretionary injury-based exemption.

The bill would also amend the definition of “exempt personal information” in the Privacy Act to allow specific salary and responsibility access requests for the senior levels of the federal service.

However, there is much misunderstanding and confusion regarding this bill. Some opposition members have called the bill an attack on the CBC. It is not. CBC is in no way being singled out. In fact, the prejudice test would provide enhanced protection to recognize the unique position a public broadcaster is in vis-à-vis the state.

Transparency and sunlight are fundamental to open democracy and indispensable in holding government to account, so I encourage all hon. members to support this private member's bill, unamended, at all stages.

CBC and Public Service Disclosure and Transparency Act

[Gerald Keddy, Conservative, Parliamentary Secretary to the Minister of International Trade]

Mr. Speaker, I listened to some of this debate. It is always interesting to me how sometimes we in this place can take some pretty straightforward, basic information and turn it into something that really does not reflect that straightforward, basic information at all. Talk about patent nonsense, fearmongering and misleading information from the member who just stood up. It is beyond the realm. For the record, I think it is time for full disclosure.

I listen to CBC Radio and I watch CBC television. The hon. member may find that hard to believe. CBC does a pretty good job, but that certainly does not put it beyond the reach of transparency. What is wrong with openness and reasonable and responsible transparency not on personal, highly secretive information, not on giving some other company a corporate advantage, but reasonable and responsible transparency? I think that is really what the hon. member for Edmonton—St. Albert is talking about. If we cannot have that discussion in this place, then are we saying that we do not want transparency anywhere, that nobody, members of Parliament, members of the Senate, members of the RCMP, should ever have oversight in place? Are we saying that no one should ever be checked upon? We are talking about a multi-billion dollar crown corporation. Do we not want to have some openness and some transparency? Do we not want to let the full light of day shine upon certain aspects of how this corporation works? I really question where the hon. member is coming from.

Members on both sides of the chamber know that the Information Commissioner, for instance, is the independent entity that balances the legitimate interests of government in the protection of records and the public's right to know. It is a balancing situation. We just do not kick the doors in and say there is all the information. We take it piecemeal and we look at it, because there is proprietary information, there is information, quite frankly, that should remain private, but there is a lot of information that the public has a right to know.

We are going back to 1983 with the Access to Information Act. This act is three decades old. This is not something that just came through the mill. It is a guiding principle that government information should be available to the public and that any necessary exemptions to the right of access should be limited and specific.

How can the member say that this is some kind of a witch hunt against the CBC? What the opposition is saying about this legislation is incredibly misleading. The bill deals with the CBC, a multi-billion dollar crown corporation that Canadian taxpayers pay for and how access to information requests should be managed.

I will provide the House with a little content, a bit of history, about the corporation before I really discuss the fine details of Bill C-461.

CBC/Radio-Canada began well before the days of television. A lot of members in the NDP would remember those days when Canadian radios were severely lacking Canadian content and coast to coast coverage was not heard of let alone planned for. The CBC, as we know it today, really came into being in 1936 when the Canadian Broadcasting Act created the CBC as a crown corporation. The 1950s brought CBC into the world of television.

The CBC gains a significant amount of its revenue from advertising sales. However, it still receives nearly $1 billion a year from the government and the taxpayers of Canada and that is what separates it from broadcasters whose funding is solely from private sources.

I know that I will have to finish my remarks another time, but to turn now to the relationship between the CBC and the access to information regime, my colleagues will remember that in 2006 our government succeeded in delivering its first major piece of legislation. It was the Federal Accountability Act, which accomplished a number of important things. In short, what we are talking about here is simply reasonable, responsible accountability.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am happy to have this opportunity to speak for a few minutes to Bill C-461, the CBC and public service disclosure and transparency act.

I would first like to thank the member for Edmonton—St. Albert for his efforts to bring a higher level of openness and accountability to the CBC. Bill C-461 also proposes to bring more openness in relation to the expenditure of public funds. These involve the disclosure of reimbursed expenses to government employees and of the exact salaries of the highest-earning officers or employees of government institutions.

Before dealing with the changes that Bill C-461 proposes in relation to reimbursed expenses and the exact salaries of the highest-earning officers or employees of government institutions, let me first describe in some detail the changes it proposes to make that will affect the CBC.

Currently, the Access to Information Act and the Privacy Act do not apply to records of the CBC that contain information that relates to its journalistic, creative or programming activities. This means Canadian citizens do not have a right of access to this information.

If Bill C-461 passes as is, the CBC would be fully subject to the Access to Information Act. By this I mean that all CBC's information could be requested under the Access to Information Act. However, the CBC would be able to protect information that, if disclosed, could cause harm to its journalistic, creative and programming independence. Bill C-461's proposal regarding the CBC is based on the Information Commissioner's recommendation made before the Standing Committee on Access to Information, Privacy and Ethics. My colleagues may remember that back in 2011 that committee conducted a study of how the CBC handled its access to information requests and issued a report in March 2012.

I would now like to focus on one area that I believe the House should consider when reviewing this legislation.

One of the pillars of journalism is the ability to protect confidential journalistic sources. Individuals can therefore feel comfortable enough to approach journalists and give them information without fear that their identities will be disclosed and, correspondingly, news agencies are able to provide assurance of anonymity. For an individual who is a confidential journalistic source, any notion that information that could reveal their identity would be released or reviewed could put the CBC at a distinct disadvantage in relation to its private sector competitors. Accordingly the House may wish to consider the way in which Bill C-461 treats information that would reveal the identity of confidential journalistic sources of the CBC.

Back in 2011, the Federal Court of Appeal dealt with a dispute between the CBC and the Information Commissioner on how the CBC was handling its requests under the Access to Information Act. When considering the provision that currently excludes records of the CBC, the Federal Court of Appeal concluded that for journalistic sources the exclusion was absolute and that the Information Commissioner therefore did not have the power to examine such information. Both the Information Commissioner and the CBC expressed satisfaction with the outcome of that decision. Accordingly the House may wish to consider the court's findings on this matter as it continues its review of Bill C-461.

Let me turn now to the part of Bill C-461 that deals with increasing openness and accountability in relation to certain government expenditures. Hard-working Canadians pay their fair share of taxes. I think all parliamentarians in the chamber would agree that they deserve to know that their money is spent by the government prudently and that there be transparency in its expenditure.

Bill C-461 proposes to amend the Privacy Act to shine the light on how certain government spending is conducted. Bill C-461 proposes to do this in two areas.

The Privacy Act governs the disclosure of personal information by government institutions. At the same time, there are certain types of personal information that can be disclosed to an access requester under the Access to Information Act or the Privacy Act.

Also, a government institution can disclose these types of personal information whenever it chooses to do so. Information that relates to the position or function of an officer or employee of a government institution falls into that category of information and can therefore be disclosed. Currently, examples of job-related information listed in the Privacy Act that can be disclosed are the position occupied by the employee, opinions given by the employee in the course of employment and the salary range of the position. Bill C-461 proposes to make two additions to the list of personal information that can be disclosed under the Privacy Act or Access to Information Act.

The first would be the exact salary of officers or employees of government institutions who earn the highest salaries paid by government. It is important to note that the change proposed by Bill C-461 will not affect the majority of public servants. Most people employed by the government are not in the top ranks of the public service. For these employees it will remain true that only their salary range and their job classification can be disclosed. It is only those who are in the highest ranks who would be affected by the change proposed in Bill C-461. The House may wish to consider which level of government employees should be covered by the bill.

Second, Bill C-461 proposes to amend the Privacy Act to specifically list expenses incurred by employees in the course of their work for which they are reimbursed, as types of personal information that can be disclosed under the Access to Information Act or Privacy Act.

In conclusion, I would again like to thank the member for Edmonton—St. Albert for bringing forward the legislation and allowing Parliament the opportunity to discuss this issue. Again, I would encourage members to consider the various issues I have raised and I look forward to the continued debate on the bill.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Mr. Speaker, I cannot help but think of the French-speaking community in my colleague's riding, which relies heavily on Radio-Canada. I wonder whether they were consulted.

I rise in the House today to condemn what can only be seen, despite a devious facade, as an attack against public broadcasting and programming. It is an attack against the work CBC journalists do, against free, politically independent journalism.

I respectfully ask my colleagues to resist the lure of the bill's misleading title. It is a sham. This bill is not about transparency. Its real goal is a long-standing, political goal: to undermine the CBC and public broadcasting in our country. Yet that tradition is at the very heart of our culture.

In fact, the bill really is about the government's Reform roots and their unrelenting attacks on the CBC. It is about a pathological anger against public radio and TV that has obsessed and tormented some people for 25 or 30 years. It is about an unhealthy obsession with the CBC, although that affliction is very rare among the people I meet on the street.

Just admit it. The truth is that no one in the House dislikes or even detests the CBC as much as the members opposite. I am tempted to tell them to get over it. Their problem is that they are going it alone with this personal mini crusade. They do not have the support of the 78% of Canadians who, according to an Angus Reid poll, believe that the CBC fulfills its mandate, or of the 59% of us who would like the CBC's funding to be at least maintained or perhaps increased.

Our colleague from Edmonton—St. Albert is up against an overwhelming majority of Canadians who oppose the destruction of the CBC. Therefore, I will say to that MP, who has an axe to grind, that he is quite alone.

I believe that this bill does absolutely nothing for transparency. This bill is coming out of left field today. The CBC is known as a model of transparency and access to information.

With regard to transparency, it received an A in 2012. I am not the one saying so. The Information Commissioner ranked the CBC among the best public organizations for transparency. According to her report, it sets an excellent example.

At this time, anyone can ask for internal CBC information about expenditures in various areas.

If the CBC refuses the request, which happens in 4.2% of the cases, the person can refer the matter to the Information Commissioner, who determines if the information request pertains to sensitive matters such as the work of journalists, who must protect their sources.

That is the current system. It is a system of exemptions based on the international standard for information requests that gives the Information Commissioner the right to examine information that the CBC wants to protect. It is a system that works, that was voted on in the House in 2006, that we supported at the time, that was enhanced by the federal court and that was approved by all stakeholders. The Information Commissioner is satisfied, the CBC is satisfied, everyone is satisfied, except for those who are just entering the debate. We suspect that the Conservatives are actually not very interested in the real issue of transparency. That is another excuse, another opportunity to weaken the CBC's presence.

We have reason to worry about the work of journalists and the protection of their sources. Currently, the CBC is protected, excluded from disclosing information about its journalistic, programming or creative activities. This same system is in place for public broadcasters in other parts of the world such as Ireland, Australia and the BBC in Great Britain.

This protection is based on an international standard and allows the CBC to carry out its public mandate by being a competitive player in the media environment, in a way that is transparent to taxpayers. Above all, it is a way of ensuring that journalists' work will not be compromised or the confidentiality of their sources questioned.

Bill C-461 proposes that we dismantle this system that was created by Parliament and clarified by the courts. It proposes that the exclusion should become an exception so that the CBC would have to prove that disclosure could reasonably be expected to prejudice the corporation’s journalistic, creative or programming independence.

One has to wonder who will benefit from this bill. Certainly not the public, given that virtually all access to information requests made to the CBC come from its competitors.

This is a bill that is tailor-made to benefit the CBC's competition. And that competition is cozy with the Conservative Party, so cozy that a person can move easily from the Prime Minister's Office to the vice-presidency of the private network that is the most maliciously and exceedingly critical of the CBC. And that is not just by chance.

This bill sets out to expose the CBC to its competition in order to weaken it and eventually eliminate it.

In terms of protecting sources—and this is even worse—the CBC will have to argue why journalistic research, including confidential sources that allow employees to do investigative work, should not be made public. Generally speaking, that is a given.

Once again, it has to be “reasonably” proven, and I want to emphasize “reasonably”, that the journalistic process will be affected. The Supreme Court spoke about the public interest in preserving the confidentiality of the journalist's source and “the high societal interest in investigative journalism”.

Do not forget that Reporters Without Borders recently dropped Canada from 10th to 20th place in its annual press freedom index. That is not something this government can be proud of. Reporters Without Borders noted the continuing threats to the confidentiality of journalists’ sources as the reason for the downgrade.

Another aspect of the bill before us is the amendment of the Access to Information Act so that the salaries of some government employees can be subject to access to information requests. There is something fishy going on here too. To be quite honest, it is actually more of a whale of a problem. The vocabulary used in the bill seems to be tailored so that our colleague's insatiable curiosity, about some CBC celebrities, including Peter Mansbridge and Rick Mercer, which he mentioned earlier, can be satisfied.

In the past, the hon. member for Edmonton—St. Albert even took the time here in the House to ask about their salaries in particular. The hon. member for Jeanne-Le Ber saw first-hand that, when we ask exactly the same question about the salaries of the little army of goblins working for the Prime Minister's Office in the Langevin Block, we do not get an answer. What a surprise. Oddly enough, that is how it usually works.

Since the Conservatives want to talk about transparency, let us talk about it. While the CBC received an A for its transparency, last year, the Information Commissioner gave the Canadian Food Inspection Agency and Transport Canada an F.

Does the hon. member for Edmonton—St. Albert have a position on this issue? Does he want to share his concerns with us or would he prefer to focus only on the CBC? Does that suit him?

The Information Commissioner must now go before the Federal Court to call to order the Department of National Defence, which has been asking for extensions for responding to access to information requests for over three years.

The Conservatives are being totally outdone by the CBC when it comes to public transparency rankings; yet, they are finding a way to attack it.

That would give Sigmund Freud something to analyze. It is odd.

The day before yesterday, on CBC, the Information Commissioner said that the current Conservative government is not one of the most transparent—this understatement was indicative of her duty of deference—and that the response rate for access to information requests had reached record lows.

She said that Canadians should be outraged. This is where we have a problem. In 2006, the Conservative Party took office under the banner of accountability. Now there is a tale to remember. Their focus on accountability was, hon. members will remember, in direct response to the sponsorship scandals. It is strange to think about the word “accountability” today.

We just celebrated the seventh anniversary of this government. Today, after seven years, we can honestly say that this government is the least transparent and has caused the most scandals in Canadian history.

The member for Edmonton—St. Albert belongs to a government that preaches transparency, that expects it from everyone but itself. From its seat in Ottawa, the government spends billions of dollars on a whim and then demands accountability from aboriginal communities, labour associations, anyone but itself.

Today it has set its sights on the CBC, which it surely finds inconvenient. Transparency is a piece of cake when it is demanded of others. Transparency is increasingly being used as a way to launch stealth attacks against the right's targets of choice; this needs to stop.

We demand transparency. The NDP demands transparency right here, right now. After seven years, it is about time the government itself showed some transparency.

All of this brings us to the realization that the bill we have before us has more to do with the disgust that some feel for public radio and television than with a sincere ethical concern. This is but another salvo in what the Canadian Media Guild has dubbed “a dirty war against the CBC”.

I recently began personally measuring people's attachment to their public broadcaster. On January 23, at the Lion d'Or, in Montreal, individuals and creators from all walks of life gathered to attest to the cultural importance of the CBC.

After some consideration, I have come to realize that the things that members across the way have been saying about the CBC represent a marginal opinion and quite simply contradict the mainstream impression of our public broadcaster; what is more, it seems their arguments mostly do not hold water.

The majority of Canadians who, like us, are in favour of an independent public broadcaster free of political leanings have no doubts as to what is going on tonight. This majority wants our public broadcaster to stay independent and transparent and keep reflecting our national creativity.

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

moved that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.

Mr. Speaker, it is indeed a pleasure to rise and speak to second reading of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act for public disclosure. The bill's short title is the CBC and public service disclosure and transparency act.

The bill has two purposes. The first is to correct a recognized deficiency in the current section 68.1 of the Access to Information Act, which currently reads:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

Not surprisingly, the CBC took the position that it had an absolute exclusion with respect to its journalistic, creative and programming activities, even so far as the Information Commissioner and her investigative powers were concerned.

The Information Commissioner disagreed, stating that the access act allows her to examine any documents under request to determine if the exception applies.

However, as the CBC denied her certain documents, the Federal Court was called upon to make a determination. Both the Federal Court and the Federal Court of Appeal sided with the Information Commissioner. The appellate court referred to section 68.1 as, “not a model of clarity”, because it created an exclusion and then an exception to that exclusion, which, in its words, creates “a recipe for controversy”.

Meanwhile, the House of Commons Standing Committee on Access, Privacy and Ethics held a study on section 68.1 and recommended that it be amended to avoid any such future controversies. Therefore, Bill C-461 attempts to provide clarity to the issue of the CBC's access and disclosure obligations by replacing the aforementioned blanket exclusion with a discretionary exemption. It further adds an injury or prejudice test, which must be satisfied in order for the exemption to apply, and reaffirms the Information Commissioner's absolute right to examine the documents in order to adjudicate disputes.

Accordingly, the bill proposes that section 68.1 of the access act be replaced with the following, 18.2, which states:

The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclos2ould reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.

The word “independence” was deliberately chosen and replaces the current word “activities”, first because it is narrower, but more to the point, because it is the independence of the public broadcaster that must be protected and therefore exempted from access requests, not all documents merely relating to its activities.

Some will no doubt argue that the bill is an attack on the CBC. That is not so. I am a fan of much of what the CBC does. It is Tuesday night, and I rarely miss The Rick Mercer Report or This Hour Has 22 Minutes. I never miss Hockey Night in Canada, at least not when the Oilers are playing. Power & Politics and radio's The House are often on my TV and radio respectively.

This legislation is not about the CBC so much as it is about transparency and accountability. Section 68.1 of the Access to Information Act was flawed. The Federal Court of Appeal said so. It was flawed, misunderstood and litigated. This legislation attempts to remedy these defects.

Some may suggest that the bill fails to properly recognize the unique position a public broadcaster is in. That is not so. I clearly appreciate and respect that a public broadcaster, especially as a journalistic entity, must enjoy a degree of independence from government.

However, and this is important, the Information Commissioner is not part of government. The Information Commissioner is an officer of Parliament. Similar to our collective role in this chamber, the Information Commissioner plays an important role in holding the government to account.

Moreover, the prejudice test, which is established under proposed section 18.2, recognizes this unique relationship between a public broadcaster, Parliament and government by providing a discretionary exemption when it is established that disclosure will result in prejudice to the CBC's independence. In any situation where disclosure would result in prejudice to the CBC, disclosure would be inappropriate. I submit that the prejudice test is a built-in protection not enjoyed by most government institutions, and this extra protection reflects an understanding of CBC's unique position as a public broadcaster.

Some may, and I expect will, argue that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained. Not so. I agree that confidential journalistic sources must be protected, but I dispute that an exclusion is either appropriate or practicable.

First, the Information Commissioner has unlimited power under section 36(1) of the Access to Information Act, to compel production of “such documents and things as the [Information] Commissioner deems requisite to the full investigation and consideration of the complaint”. I am simply skeptical that an exclusion can be drafted that can coexist with the Information Commissioner's unfettered powers to compel documentation production under section 36.

Moreover, journalistic source privilege is not absolute. The Supreme Court of Canada has said so as recently as 2010 in R. v. National Post. It is not a class privilege; it is fact specific and therefore must be examined on a case by case basis. Who is to determine if the four-pronged test developed by esteemed Professor Wigmore is satisfied, if the CBC is granted an absolute exclusion? The obvious answer is “nobody”.

Is CBC to be made both judge and party in access to information requests? Certainly not. Disputes must be arbitrated by an independent watchdog and the federal court has said, “disclosing records to the Commissioner does not amount to revealing them”.

This bill would contain parallel amendments to the Privacy Act to import the prejudice tests when individuals request documents about themselves pursuant to Canada's privacy statute.

However, the CBC and public service disclosure and transparency act would make a more substantive alteration to the Privacy Act. It would move the words “range of” before the word “salary” in the definition of exempt personal information for the highest wage earners in the federal public service. Currently, under Canada's privacy laws, only the range of salary can be disclosed pursuant to access requests, which I submit is adequate for most income levels. However, at the highest income levels, the increments become increasingly large as to become meaningless. For example, I have been advised that the current CEO of the CBC earns in the range of $363,800 to $428,000. According to my math, that range of $64,200 is larger than many taxpayers' complete salaries and arguably therefore is not meaningful disclosure.

Accordingly, if Bill C-461 is adopted, the specific salaries and responsibilities of upper management, which this bill would define as “DM 1 and higher”, would be subject to access to information requests. This is important. This change would apply to the entire federal public service. CBC would in no way be singled out. Moreover, reimbursed expenses to all federal employees would also become subject to access requests.

I have consulted widely during the drafting phase of this proposed legislation. I believe, and I believe Canadians believe, that they are entitled to meaningful access to how the Government of Canada spends dollars and how the government operates generally. However, Canadians, including federal employees, are also entitled to a reasonable expectation of privacy. Balancing these competing objectives is indeed a challenge and precarious.

However, it is submitted that an injury base test achieves that balance at least as well as that balance can be achieved regarding CBC's disclosure obligations, as it requires a public interest analysis. The question becomes this. Is the public interest in disclosure greater than any consequential harm? Limiting specific salary disclosures to upper management recognizes the privacy rights of the rank and file public servants.

Taxpayers rightfully are entitled to know how their tax dollars are being spent. In that regard, many provinces have established the so-called sunshine lists, which are publicly disclosed lists shining the sun on salaries, perks and benefits paid to government executives, directors and managers. Members may know that Ontario led the way with respect to such financial disclosure. The Ontario government introduced legislation in 1996 mandating the publication of names and salaries of all of its employees and officers who earn more than $100,000 per year.

The purpose of the Ontario law is to provide a more open and accountable system of government. Disclosure allows taxpayers to compare the performance of an organization to the compensation given to its senior people running it. It allows taxpayers to know how their tax dollars are spent.

British Columbia, Manitoba and Nova Scotia have all copied aspects of the Ontario legislation, with reporting requirements varying and going as low as employees earning $50,000 in the case of Manitoba.

My bill does not call for a website, but by mandating or at least allowing disclosure pursuant to access requests, the public will serve as a critical check on government expenditures and an effective deterrent to any government official tempted to treat taxpayers disrespectfully.

This approach, I would submit, is consistent with the purpose of the access legislation generally, as enumerated in the act, that there is a right of access generally to records under the control of a government institution, and that necessary exceptions should be limited and should be specific, and that decisions on the disclosure of the government information should be reviewed independently of government.

As an officer of Parliament, the Information Commissioner is independent of government and therefore in the best position to resolve the inevitable disputes regarding access to government information.

Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, according to academics and according to the Information Commissioner, we are becoming laggards. Internationally, Canada is currently ranked 55th out of 93 countries in terms of our access and our openness.

Moreover, the Centre for Law and Democracy says the federal government is falling behind the provinces and ranking behind those provinces in terms of openness and transparency.

As we have seen, Ontario is arguably leading the way with the most comprehensive sunshine list. British Columbia, Saskatchewan, Manitoba and Nova Scotia are all following suit and have implemented some variation of salary disclosure.

Sadly, and this should be of concern to this chamber, the federal jurisdiction is falling behind. Since its inception 30 years ago, there has been only marginal expansion of Canada's access law. In December 2003, the then-prime minister announced a new policy on the mandating of publication of travel and hospitality expenses for selected government officials. Then in March 2004, the then-government announced a new policy on the mandated publication, on a website, of contracts over $10,000. In my view, sadly, very little has happened since then.

Accordingly, the Information Commissioner—and I heard her on CBC Radio; I was listening to her on Sunday morning—observes a lack of commitment to openness and transparency at the federal level. Bill C-461, the CBC and public service disclosure and transparency act, is an initiative by Parliament to remedy this trend. The spirit of the act is based upon the principle of disclosure. Non-disclosure must be the exception. Bill C-461 clearly promotes this principle.

The CBC and public service disclosure and transparency act promotes open and transparent government and its role in holding government to account. Exclusion to government information prevents Canadians from holding their government to account. I believe, and I hope all members believe, that holding government to account is fundamental to democracy.

Although freedom to know is not a charter-protected right, freedom to know is inextricably linked to freedom of thought and expression and freedom of the press. Knowledge is power, and holding the government to account demands that knowledge and information be shared. Holding to account leads to the establishment of trust, trust that there is proper stewardship of public resources.

Opaqueness leads to mistrust. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will be so regarded. As U.S. Supreme Court Judge Louis Brandeis said, sunlight is the best disinfectant.

Canadians deserve to have light shone on government information. Accordingly, I encourage all hon. members to support Bill C-461, the CBC and public service disclosure and transparency act, without amendment.

[Michel Bédard]

Bill C-461 would amend the Access to Information Act and the Privacy Act, with regard to the Canadian Broadcasting Corporation, as well as the Privacy Act, with regard to the definition of “personal information”.

This bill does not concern questions outside federal jurisdiction. It does not violate the Constitution, including the charter. It does not concern questions that have already been voted on during this session. It does not concern questions on the order paper as items of government business.

Access to Information

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

Mr. Speaker, yesterday I tabled Bill C-461, CBC and public service disclosure and transparency act.

If passed, the statute would amend the Access to Information Act and the Privacy Act to remove a deficiency that allowed the CBC to deny access requests if it affected its journalistic, creative or programming activities. My bill replaces this blanket exception with a discretionary exemption based on an injurious test. For the exemption to apply, the Information Commissioner would have to be satisfied that disclosure would result in injury to the CBC.

In litigation between the CBC and the Information Commissioner, the Federal Court of Appeal referred to the existing provisions as “not a model of clarity”. The Standing Committee on Access to Information, Privacy and Ethics recommended in March of this year that section 68.1 of the Access to Information Act be amended to remove the blanket exception and to provide clarity with respect to CBC disclosure.

This bill is in accordance with that committee's report and the Federal Court judgments. Accordingly, I encourage all hon. members to support the CBC and public service disclosure and transparency act.

CBC and Public Service Disclosure and Transparency Act

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

moved for leave to introduce Bill C-461, an act to amend the Access to Information Act and the Privacy Act (disclosure of information).

Mr. Speaker, it is truly an honour for me to rise today and table a private member's bill amending the Access to Information Act and the Privacy Act. The bill's title is ”the CBC and public service disclosure and transparency act”.

If adopted, the bill would remedy a defect in the current section 68.1 of the Access to Information Act and, in so doing, it would replace the blanket exception with a discretionary exemption, based on an injury based test. The bill would also provide that specific salaries of the highest levels of management in the public service would be subject to access to information requests.

I believe the bill successfully addresses concerns raised by many constituents with respect to taxpayers' rights to information and is a step in the right direction toward enhanced government transparency and accountability.

I encourage all members to support the CBC and public service disclosure and transparency act.

(Motions deemed adopted, bill read the first time and printed)