Information & Ethics Committee on May 10th, 2007

[Mike Wallace, Conservative, Burlington, ON]

Thank you very much. I have the floor.

This individual could have used that area, in terms of the advice section of the exemption, to make a determination, which this person likely makes, if not daily, then weekly, on the documentation this department gets.

I'm with you. We're going to need to make sure that this was the right decision to be made, but we're not the body to make that decision. You need to wait until the Information Commissioner decides whether the person made the right choices or not, but you're trying to pre-empt that with this motion. By pre-empting that with this motion, I don't think we'll get to the answers we're looking for on this particular item.

I think, based on the motion that was put on the floor first, that if we had waited for that individual...and I even amended it, or had somebody else amend it, to make it “current” issues. A colleague of mine from the other side mentioned that if this proceeds for years, then we don't get an answer; I said “current”. It wasn't even a concession. It's what I actually meant: that the current ATI applications that were in would be reviewed and we would get an answer quickly.

I think the sitting chair now made a point that this could go on forever, and so on and so forth. He made a suggestion on a date. We put that forward. That didn't pass either, but I did appreciate his suggestion.

So I'm very, very concerned about the section of the act, in terms of exemptions and operations of government on the advice piece, that plans could clearly have been outlined in this regard. Now, even if the plans aren't word for word in the documentation, there still is a possibility that people could read the documentation and make their own plans against Canadians or against the Government of Afghanistan, based on the information they had.

Again, my guess is that there is probably a nucleus of what the next steps might be, because rarely do you get a report like this that wouldn't have some sense of where we go next. If it's just an analysis of how things are going, democracy, the number of seats they have, how many prisons they have, how many countries are there helping, how much new water has been developed, I can absolutely guarantee you that type of report would have no blacked-out sections, because there would be no exceptions that would have been applied. The operations of good governance would not have been applied. The responsibility we have for the safety of individuals would not have been applied. Clearly, our responsibility as a government on international defence in sections 15 and 17 would not have been applied.

So, obviously, this likely report, which I have never seen because it's blacked out, may have that kind of information in it, and that is clearly set out in the act.

In addition, under “Advice”, if the record came into existence fewer than 20 years prior to the request--

[Bruce Stanton, Conservative, Simcoe North, ON]

I have a point of order, Mr. Chair.

As my colleague has continued to make some, I think, very valid points on this, it occurs to me, Mr. Chairman, that the motion actually compels us as a committee to gather evidence. As we have increasingly heard here today, the potential evidence for this review is in fact the subject of an investigation by the Information Commissioner. We've also heard that it's the subject of an investigation by the court.

How is it possible that we can proceed with a motion that compels us to gather evidence we may not have access to? In fact, it appears we do not have access to it because it's the product of another investigation. So it would appear that this motion is at odds with an existing protocol that we as a committee can't really contravene.

I'd ask you that again. I know you've ruled on this. I certainly beg your indulgence on this, but again, part of the essential tenets of this motion is the gathering of evidence, which I don't think we're at liberty to partake of.

[The Chair, Liberal, Tom Wappel]

I'm going to rule the point not well taken.

Again, I want to point out that “gather evidence” is a very broad term. While we may or may not be able to get certain types of evidence, and we may or may not be able to get other types of evidence, we will not be able to determine that unless and until this motion passes and we attempt to obtain the evidence that we want to get.

Powers of committee are exceptionally broad in terms of calling for papers and documentation, but that would be an issue that we would deal with at another time on another day. It may very well be--and I'm not ruling one way or another--that we might be denied access to certain documentation on certain statutory bases. We'll have to deal with that as a committee if and when that arises, if and when this motion is passed.

But certainly, I can conceive of some kind of evidence that could be gathered that would not breach national security. So I have to rule your point not well taken.

You're back on the floor, Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chairman.

I was just providing information to the committee on subsection 21(1) on the advice part of operations of government. I just want to be clear, there are paragraphs (a), (b), (c), and (d), and at the end of that, if you take those out, it reads:

if the record came into existence less than twenty years prior to the request.

If you put that with the first part, they read:

The head of a government institution may refuse to disclose any record requested under this Act that contains

--and then it goes into what it may contain, then--

if the record came into existence less than 20 years prior

I know some academics and some individuals would say there's no way the government can always, forever, hold the information. Well, the act itself says that after 20 years that information, that advice, because this is in the advice section...they're likely not in government any more, they're a different body, different names of people, and this part may not apply to that. There may be other areas in terms of national security and so on that may apply.

In this section, in terms of advice, because that's what we're talking about, any advice in writing to a minister within 20 years that meets the criteria that was set out in paragraphs (a), (b), (c), and (d) is protected. The access to information officer who is in this department had the ability to make a determination based on seeing the report in its full context that it may be blacked out based on one of those criteria...“may be” because we haven't seen it, based on the advice, and that's completely legal.

In 20 years from now, if the report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights, is still of interest to people, to see that report and what advice may or may not have been in there, then after 20 years, likely they would, in this particular section, be allowed to see it. But at present, based on what's written in front of us and what the law is, the law that came in and was fully supported by the House and has done a pretty good job for Canada over the last couple of decades....

There is an exercise of discretionary power in this. Subsection (2) reads:

Subsection (1) does not apply in respect of a record that contains

(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person;

So this exercise of discretionary power obviously is not black and white, and there is a potential because you can't list absolutely everything in terms of what constitutes advice, what doesn't, how it affects other areas...you just cannot physically list it out. There is an opportunity, which I think is part of the exemption, to exercise a discretionary power function. Where the account or statement or reasons for a decision that is made in exercise of discretionary power affects the rights of a person, that part of the legislation may be able to be released.

That's a section that, again, the ATI person, particularly in this case, would be very familiar with, having been in the business focusing on this probably for a number of years, based on the fact that it's in Foreign Affairs and we would have people who would have been there.

My guess, Mr. Chairman, is that if you really look at it at that level, the chances of it being a change from one government to another is pretty slim.

We'll probably be looking for consistency in that function from the Office of the Information Commissioner and that department to make sure that the protections that have been provided in the past for our allies, for the advice to ministers, for our negotiations with foreign countries, for our international obligations, and for our safety and security....

My guess is it's pretty consistent that the person who may have made these decisions may have been in this department for many years. That person has been using the exact same criteria for many years to determine whether it fit into any of these exemptions pieces.

There's also an exercise of discretionary power:

a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.

So there are some exemptions here to allow for some discretion, based on what the report says or what the advice is, in terms of its detrimental effect to the operations of government. It provides some security for those who are on the outside as consultants or advisors, but not for an employee of government at the time, or for an employee of the minister when the report was prepared.

That also helps protect them in this section, and this wasn't done on its own. It's been tested numerous times, Mr. Chair.

There are references in this area of this report that you could look at. There are reports to refer to, and in 2002, again long before we were in government, there's item (i)(g) in that report—

[A voice]

Tell us about item (i)(g).

[Mike Wallace, Conservative, Burlington, ON]

—that talks about splitting protection of cabinet confidences. My understanding is that this talks about the role of cabinet confidences, where you draw the line when somebody's giving you advice, and where it can and can't be released.

Basically, this report, under the Liberal administration, supports what's in front of us here, in terms of the operation of the government and advice to the minister—or it doesn't have to be to the minister. Again, I would let you know that it could be advice to other departments. I'm not sure if it covers crown corporations, so I'm not sure if it applies to advice to the Canada Post Corporation, for example, to Ms. Greene or someone such as her. They are separate from the operations of good government, but this would be something that as a committee, when we're looking at the access to information piece, we could explore.

There's another report, which I mentioned in another section, that also applies here, Strong Medicine for Delays. It's important in this case, and in all cases, that the advice ministers get is provided in a timely manner, because they're often making decisions that need to be made fairly quickly, and so on.

In the Afghanistan 2006: Good Governance, Democratic Development and Human Rights report, which is referenced in this motion, we're not sure what it would have done in terms of the delay on any decisions that had to be made, particularly based on the advice that was given. Again, the title indicates that it may have been a review of what happened in 2006, but I'm pretty sure it would also give advice on what should happen in 2007, and further on.

So any delay in that could have been very damaging to the country, to our military people, and to our humanitarian folks on the ground in Afghanistan, who are doing great work for us.

I would encourage members of the committee to look at that report to see why it's important to this section, and it's important that we wait until we hear from the commissioner on this particular item before we proceed.

These are the kinds of things....

Oh, Sukh, you're leaving us. I'm sorry.

[An hon. member]

How could you?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

I am going to come back.

[Mike Wallace, Conservative, Burlington, ON]

We'll see you next week.

The kinds of reports that we should be looking at support these pieces. When we get the Information Commissioner back here, we can talk about what—

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

I have to make a speech in the House, but I will come back.

[Mike Wallace, Conservative, Burlington, ON]

Very good. We'll be watching on television.

[Some hon. members]

Oh, oh!

[Mike Wallace, Conservative, Burlington, ON]

These are the kinds of reports, Mr. Chair, that support these exemptions in the law that has been set out, and we should be taking these reports, reviewing them, and seeing how they affect this piece. If this ends up passing, which is a possibility, I'm assuming we'll call the commissioner on this. I know I will be asking for the commissioner to appear. Either the commissioner will appear or he'll say he's sorry, that since they have an active file on this, they can't do anything--sorry, we can't come. But when the commissioner appears in front of us again, and if this is still an issue about the ability of this section of the Access to Information Act to allow governments to protect our international affairs, the security of individuals, and the operations of government, then these reports are the things we should be referencing and asking the new commissioner about--no, he's new, so let's give him a break. He may have to get back to us on these positions. Maybe we work on some advice to government to make changes; maybe we agree with what's in there. But there was a report in 2002, and it has a section 21 in the advice and recommendation section.

I've mentioned this 2002 report a few times. There were safety and security issues in this country. They were looking at the access to information report. There were reports done on these specific sections. This is 2007; that's five years ago. Maybe it's time to do another report for you. I know when this committee was first constituted, the actual Minister of Justice came. He's not the Minister of Justice now; he's head of the Treasury Board. We have a new Minister of Justice, but when we tabled the Federal Accountability Act, we also tabled the Open Government Act, which was provided by the previous Information Commissioner. He provided a response to our accountability act, and we actually have in writing a working document that gives the government's response to that document.

If we wanted to get started on that kind of discussion, I think we've got the privacy piece coming up first, which, it sounds from the privacy commissioner, is long overdue, but when we get to access to information, which I know we will study eventually, those are the kinds of things we will deal with. That section that applies in this report that we are dealing with today in terms of gathering evidence may have implications for what we might do.

From 2001 to 2002 there's this index of case summaries. It's the same index we had before, but I encourage people to look at it. They happened from 1994 to 2002, so they're very relevant to what happened prior to that.

In 2001 and 2002 the Information Commissioner was representing Canada, representing himself, so it's Canada versus Canada, which is an interesting piece. In 2001-02 there is an actual case in which the Information Commissioner took the industry ministry to court. It supports the exemption that's available in this report on advice. It isn't new that this has happened. It didn't happen under our government, the new Government of Canada; it happened under the old Liberal government. I would recommend to my committee members that they have look at what the Information Commissioner at the time said and at the outcome of that case. It's appropriate to look at it after the decision has been made; I'm finding it very strange that this motion in front of us wants us to look at something before the Information Commissioner has ruled on it and made a decision. Then I think the debate and the discussion will be a lot more productive than it is today.

[Rick Dykstra, Conservative, St. Catharines, ON]

No, I wouldn't say that.

[Mike Wallace, Conservative, Burlington, ON]

Well, it's true, and it would deal with the facts of the matter. Maybe after the commissioner is done with the piece, it might be released, and we could have a full discussion on it. There might be areas that are still blacked out, but we will have a decision from the Information Commissioner on what was appropriate, why it was appropriate, which part of the act he used, and if he used any exemptions. If you review the results of the court case between the commissioner and the minister for industry, that would be great. In fact, if I recall correctly--and I might be wrong--I think Mr. Eggleton is still part of the government. Is he in the Senate?

[The Chair, Liberal, Tom Wappel]

No, he's not part of the government.

[Mike Wallace, Conservative, Burlington, ON]

No, I meant Parliament; I apologize. Good point, Mr. Chair. Thank you for clarifying that.

Are we able to call a senator to come to a committee to discuss something that happened in the past?

[The Chair, Liberal, Tom Wappel]

Absolutely.

[Mike Wallace, Conservative, Burlington, ON]

He's here. There are a few other names here--

[David Tilson, Conservative, Dufferin—Caledon, ON]

I have a point of order. Mr. Chairman, Mr. Wallace has raised yet another outstanding issue, the issue that arises if this committee makes a decision that is contrary to the decision of the Information Commissioner's report.

We all talk about the rules of natural justice; their report would unquestionably be more thorough than ours, as Mr. Wallace has pointed out, and that might cause serious problems with precedence. I'm wondering if you would again reconsider your ruling that this matter is out of order.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Tilson. That is highly speculative and hypothetical, and I'm not going to rule on a hypothetical matter. I rule your point not well taken.

Go ahead, Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chair.

That piece that happened is part of the reason the wording of the advice is important for us to look at, particularly if we're going to review this section in the future and also as it relates to the report that's in front of us and the advice that may or may not have been in that report, and that's why it was blacked out.

I think it's an important issue. I'm sure nobody around this table wants to injure Canada. I'm not talking about the Government of Canada, but Canada, and any information that's released inappropriately, particularly information that has to do with Afghanistan and the good people we have working on the ground, both the military and in humanitarian efforts over there....

The other case that was previously mentioned that also has an effect in the advice section is Imperial Consultants of Canada v. Canada (Minister of Citizenship and Immigration). It is an interesting one to look at in terms of how it affects this area of the legislation and whether it applies.

Another one that I think is particularly important to advice, the section that may have caused the ATI person to black that section out, is Merck Frosst Canada Inc. v. Canada (Minister of National Health). That must have been under the Liberals...it was; it was 2001-02, under the Liberal regime--

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

I have a point of order, Mr. Chairman.

Can the member get to the point of the motion?

[Mike Wallace, Conservative, Burlington, ON]

No, you're just getting here at the beginning. I just started, Massimo.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Pacetti. Your point is not well taken.

Order.