Information & Ethics Committee on May 10th, 2007

[The Chair, Liberal, Tom Wappel]

I'm not going to rule on that point at this point, Mr. Stanton, because it's something the clerk has to discuss with other clerks.

However, I will point out to the committee that the 48th report of the Standing Committee on Procedure and House Affairs was presented yesterday, and I am told that it has been concurred in, so that Standing Order 115(5) has been amended.

It now reads:

Notwithstanding Standing Orders 108(1)(a) and 113(5), the Chair of a standing, special, legislative or joint committee shall suspend the meeting when the bells are sounded to call in the Members to a recorded division, unless there is unanimous consent of the members of the committee to continue to sit.

Therefore, it is my duty to ask if there is unanimous consent to continue to sit.

It's not a vote because this motion specifically calls members for a recorded division.

Let's be aware that this is for a recorded division, so if bells ring for a recorded division, I'm required to suspend the meeting unless there is unanimous consent.

I'm now told that it's not for the purpose of a recorded vote, so we're back to Mr. Stanton's point of order.

Mr. Stanton, I cannot rule your point—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. Chairman, wait a minute.

[The Chair, Liberal, Tom Wappel]

Excuse me, Madame Lavallée. Mr. Stanton has a point of order. I'm about to rule on it. We'll get to you.

Mr. Stanton's point of order is not well taken. There is nothing that I'm aware of contrary to my ruling, in the event that the committee decides to proceed, that forces us to leave this premise at this time. That's the information that I've received from my clerk.

Madame Lavallée, do you have a point of order?

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

No, that's fine, Mr. Chairman.

[The Chair, Liberal, Tom Wappel]

Thank you.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Tom Wappel]

Where were we?

Mr. Wallace, you were still speaking.

[Mike Wallace, Conservative, Burlington, ON]

Yes. I'll try one more time because it's still my turn.

I'll move to adjourn.

[The Chair, Liberal, Tom Wappel]

Mr. Wallace moves to adjourn the meeting. There is no debate.

(Motion negatived)

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

Mr. Chair, I have another point of privilege. If you look at Standing Order 115(2), under “Meetings”, it says:

During periods coinciding with the hours of sittings of the House, priority shall be given to the meetings of committees considering legislation or Estimates over meetings of committees considering other matters.

[The Chair, Liberal, Tom Wappel]

The committee that is waiting for the use of this room is the committee on aboriginal affairs. It is considering legislation, Bill C-44.

Consequently, it seems to me that I have to give priority to that committee. So what we will do is suspend this meeting and look for another room in which to consider carrying on our debate.

I ask all members to hang around until such time as we see whether the clerk can find us another committee room.

I apologize to the members of the other committee that we interrupted their meeting.

Thank you for bringing that to my attention.

[The Chair, Liberal, Tom Wappel]

I am reconvening the meeting.

To remind members, we are currently considering a motion by Madame Lavallée that was amended by Mr. Reid. We're currently in debate on the motion as amended.

Mr. Wallace had the floor.

Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chairman.

I'm glad we're all reconvened here to deal with the motion that's in front of the Standing Committee on Access to Information, Privacy and Ethics about urgently addressing the internal report that was issued by Foreign Affairs and to consider evidence if there was any violation....

I want to make sure that members of the committee understand what the act has in it, so that if and when this passes, the questions we ask the individuals who may or may not appear, based on whether they are able to, with an ATI piece in front of them...that we ask them questions that deal with the act that the Office of the Information Commissioner deals with, in terms of access to information.

I'm not sure that we're all absolutely aware of all the parts, but there are exemptions, which I think the deputy commissioner indicated before at committee, and I read out that there were at least 13. There were a few, and this is a Foreign Affairs document that had been requested. I read out sort of a briefing of what kinds of areas. Sections 13, 15, 17, and 21 quite often apply to Foreign Affairs.

It is important for us, because we're all busy and may not have all the information that the Information Commissioner deals with and what those sections actually mean.

I happen to have a couple of them here that I might talk about. There are exemptions to getting that.

Again I want to remind the committee that this legislation is not brand new; it started in 1983. We can show where the Information Commissioner made a ruling that was appealed by the government of the day, which I believe was Liberal, and it went to court based on these exemptions and on these things.

If this motion does pass, I am looking forward to...that we will get all the court cases that have happened and what the circumstances were. They are all concluded and they are public knowledge. We have free access to call on that documentation and the witnesses who were involved in those cases—whether they are from the ministries, maybe even the person who did the ATI request—and the commissioner and his staff, who might be able to come and tell us about why they thought it should be appealed, what the results were, and how they came to their conclusions.

Based on their testimony on those issues that happened before the Conservative government took office on January 23, 2006, they will be able to enlighten us as a committee on a number of areas where the government of the day, which was Liberal, decided that it met the exemptions. Then the commissioner had to take them to court over that.

This should make a very interesting discussion about what policy changes might need to be made to the act to reduce that. It's very costly to the taxpayer. Not only is staff involved and tied up in meetings and doing reports and background studies....

I think most of this was resolved by 2004, long before we were in office. But it happened over a number of years, and there would probably be a fair amount of research. So that would tie up the staff in terms of doing what they were doing. It would be fairly costly to the taxpayer, but I think it's important, if that's the kind of road we have.

Those are legitimate issues that are dealt with once a decision has been made by the Information Commissioner, and not in the middle of a process, which we are doing here.

One of the exceptions is actually entitled “Responsibilities of Government”. I don't know the details of the specific piece we're talking about, but I think “Responsibilities of Government” makes it clear to whoever is the government that these are the rules that are set out in particular cases.

In section 15, it's “International affairs and defence”.

The motion talks about a Foreign Affairs report entitled, Afghanistan 2006; Good Governance, Democratic Development and Human Rights. Obviously section 15 applies directly to that.

I don't have the details of what happened there. I know for a fact that they have at least one person in the department, in the ministry, who has been doing similar work. My understanding is that since about 1978.... Obviously the act didn't exist then, but there have been ATI people around since the inception of the act.

I don't know for sure, but we will see if this motion passes. At this point, I'd be happy to call any individuals who are involved in this. My previous motion would have dealt with it after the Information Commissioner ruled.

We are dealing with people who have experience protecting the information that is important to Canada and other countries for security reasons...and to help build on the confidence that other countries have in providing us with important intelligence that we would need to make good policy decisions in dealing with situations around the world.

In the “International affairs and defence” portion, subsection 15(1), it says:

The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information.

The report that was brought forward obviously relates to the international affairs piece exemption that is in the act in subsection 15(1). It is an international affair. It's from Foreign Affairs. It talks about what we're doing in Afghanistan in terms of good governance, democratic development, and human rights. Information provided in that report could have been...and I don't know because that ATI request hasn't been looked at. The ATI request was done, and the ATI individual provided the information from Foreign Affairs.

In my understanding, there has been some appeal of that decision, and it has gone to the commissioner. Of course, they have not ruled on that, so it may be accurate that the reason the areas were not made public was because it has to do with our international affairs with Afghanistan.

It states clearly in the legislation in subsection 15(1) that matters having to do with international affairs that could be hurtful to Canada or to our partners.... I believe in this environment that Afghanistan is certainly a partner of Canada. We have a very close and important relationship with them at this time, particularly with our men and women doing very brave work in their country, trying to bring democracy, and rights for men and women and children that haven't existed there for many decades.

We are doing more than our share. We have about 36 partners there, but I believe, and I think everyone around this table believes, that Canada is doing its share in Afghanistan and making a difference.

So the report could have had an effect, and based on the law, which was set out by politicians before I got here, there is an exemption for that particular reason.

Paragraph 15(1)(a) says:

relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities

In this case, again I don't know what's in the report, but the ATI person, once the commissioner rules on it, will be able to decide whether it meets the criteria of paragraph 15(1)(a), which, as you know and as I've just read, could deal with military tactics, strategy, or exercises. I don't know what the report said. We know what was released to the public, but the report is about good governance and democratic development. We have people on the ground, both militarily and non-militarily, in Afghanistan doing good work in terms of humanitarian work.

Paragraph 15(1)(a) could have an effect and put them at risk. We have the report and it may—I'm not saying it does or doesn't—have had an effect on our relationship with our Afghan partners. It may have provided information to those who are not in favour of our being there, meaning those whom we consider the enemy in Afghanistan. It could have put at risk the potential good work of our humanitarian efforts there, whether through CIDA or other non-governmental organizations who are providing water, helping to provide school systems, and doing all kinds of development work there. I think it's appropriate, as the act says, for the government to be responsible to ensure that any information provided would not affect the work being done there.

Paragraph 15(1)(b) says:

relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment;

Again, we don't know what was in the piece that was requested, and the ATI officer at Foreign Affairs may have used this. I'm not sure if this is one of the clauses that affected the blacking out of the report, but it may have been. There may have been information that the Afghan government provided in the report that would have affected the safety and security, or the tactics or thinking, of our military personnel on the ground, who are doing very good work for us in Afghanistan, risking their lives. I would say there's a possibility that the ATI officer felt they might be at risk if information in this report were released. I don't know where this information was generated from; it could also have been from the Afghan government.

Paragraph 15(1)(c) says:

relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;

Again, this is clearly our responsibility, and I really don't think I can get arguments from the other side that Canada does not have a responsibility to make sure that information provided to the public does not injure our role, our performance, our capabilities on the ground in Afghanistan when we are doing the work we're doing there, in providing a military presence that allows for the development and the growth of the humanitarian side of our mission. The other piece of this one is that we've done a very good job in helping to provide Afghanistan a democratic elected government for the first time in many, many decades. We want to make sure, and I think it's the responsibility of government under the “International affairs and defence” piece, that this exemption is applied in this report. So I think this is a legitimate piece of legislation passed by this Parliament and enforced and upheld by the members of this Parliament. The individual doing the work on this may have used this clause to black out some of the areas.

Paragraph 15(1)(c) says:

obtained or prepared for the purpose of intelligence relating to

(i) the defence of Canada or any state allied or associated with Canada, or

(ii) the detection, prevention or suppression of subversive or hostile activities.

Of course, this report is up for debate in terms of bringing it back to see whether there were any violations of the Access to Information Act. This is another area where clearly we have Afghanistan as an allied state. That information in there could have been provided by Afghanistan. It could have been detrimental to the work Afghanistan is trying to do on the humanitarian side and on the democratic development and good governance. My guess is that the person may have used this section of the act to provide the safeguard to that country and may use that part of the act to look at the wording in the report that wouldn't meet the criteria set out in this exemption.

Then we have paragraph 15(1)(e), Mr. Chairman. It says:

(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;

Now, clearly you'd have to say that this may be an area where the blacked-out area may apply, but we don't really know that for sure because we're guessing. There had been a request for information obviously asking for documentation. This is the document that was sent to them and it was blacked out in certain areas. That has been appealed--that is my understanding--so we really should be waiting to hear from the Information Commissioner on whether that area does apply or not.

And just a reminder that the Information Commissioner has full access. Their staff has full access. We do not have full access to the report. The report that was sent out on the ATI request is not legal. It's not full access for us. We will have to rely on the word of the commissioner on this--the access to information commissioner--but of course this motion doesn't allow the access to information commissioner to do their work first before they report back to us on exactly what was right or wrong. It may all be right. We have no idea because we have no information on it. We have no report from a third party, an independent organization, which we have faith in.

In fact, I recall our voting for the new Information Commissioner in a unanimous vote, with lots of praise around the table. So I think in this particular case especially, because it's his first political issue, we should be looking at what they do with it and evaluating how that is handled. This motion that's in front of us today preempts the ability of the access to information commissioner to do their work, and I'm guessing it will not be very fruitful for this committee because they will not be able to comment until they have done their work, which is the appropriate--

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

A point of order, Mr. Chairman.

[The Chair, Liberal, Tom Wappel]

Mr. Tilson.

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

Mr. Wallace has just raised an issue, and it makes me wonder whether you should reconsider your ruling as to whether or not this motion is in order.

For us to study this report we're going to have to make an application to get the report, because we don't have the right to get the report. In other words, it's going to have to go through the process of going through the Information Commissioner, just like any other application. Matters may be blacked out because of what's in section 15, so the very thing that Madame Lavallée, in her motion, is trying to do, we can't do. We can't get the report to study it, so I therefore ask that you reconsider your ruling and submit that the motion, because of that process that would be required, is out of order. Otherwise we have to start on Tuesday, if this motion carries--and it may or may not happen, we may have more things to say today--but if it starts on Tuesday, we really can't proceed with the report until we get the report. You as chair, or the clerk perhaps, would have to get a copy of the report. I don't know how you're going to do that.

My only solution is that you have to make an application to the Information Commissioner or the ministry, and it has to go through that process, just like anybody else.

[The Chair, Liberal, Tom Wappel]

I don't rule your point well taken. On the points you've made, I don't think that whether or not a committee finds difficulty in studying a question is a point of order. That may very well be. Mr. Martin already pointed out to us that he seems to know some professor who has the uncensored version of the report. I'm presuming we could call that professor, if that professor didn't voluntarily issue the report to us.

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

Well, on that point—

[The Chair, Liberal, Tom Wappel]

Let me just finish on my ruling.

I was just speaking to the clerk that indeed it's crystal clear that if we're going to deal with this, and this motion passes as currently worded, it's going to result in all of the business of the committee already scheduled being.... The clerk will tell us at the right time what witnesses were scheduled and what witnesses we are now going to have to cancel.

But clearly, Mr. Tilson, I think you're right. The first order of business would be to obtain a copy of the report and to read it as a committee—whether or not we decide to do that in camera or not—so that having read it, we can then decide what witnesses we want to hear, etc.

All of this presupposes that the motion is going to pass, and I don't think I should do that until such time as the motion does pass. But I do not agree that it is a point of order that if the committee has difficulty obtaining information, I should rule an otherwise valid motion invalid.

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

Mr. Chairman, if I could—

[The Chair, Liberal, Tom Wappel]

Mr. Tilson, I ruled your point as not well taken.

I'll go to Mr. Dhaliwal, and then I can come back to you.

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

But, Mr. Chairman, I have the right to respond to what you've just said.

[The Chair, Liberal, Tom Wappel]

No, you don't. I've made the ruling.

Mr. Dhaliwal.

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

Thank you, Mr. Chair. I was anxiously waiting for my colleagues on the other side to finish.

I'm a little bit—

[The Chair, Liberal, Tom Wappel]

Is this a point of order?