Information & Ethics Committee on May 10th, 2007

[Mike Wallace, Conservative, Burlington, ON]

Massimo missed the first sections. The honourable member missed other sections. I wonder if you want me to go back.

[The Chair, Liberal, Tom Wappel]

Mr. Wallace, you are--

[Mike Wallace, Conservative, Burlington, ON]

Okay, I'm sorry. It's just getting late.

The case is between the health department and what I believe is a pharmaceutical company. This is the kind of thing that could be in a report. A minister gets advice on some pharmaceutical issue and the pharmaceutical company wants a copy of it. It's an interesting case to look at.

This could be happening, and that's why we have to be very careful and get the Information Commissioner's report first. The Afghanistan 2006: Good Governance, Democratic Development and Human Rights report may have very similar advice. It's obviously not the same advice, but the same type of advice--giving advice on what we should be doing next, what the issues are, what the policy decisions might be, and what our role as Canada should be. Now, if everybody has the right to see that, it puts the minister and the administration who have to implement this stuff in a very difficult position.

I'm telling you that if you look at the case that happened in 2001-02, which is public, it was the same sort of advice. Think about the advice that was given and what it could have done in that case. That is why, in the act, we have an advice section under the operations of--I keep saying “good government”, and I can say that now, but it's operations of government.

There are other cases and there are other things. We have the commissioner in the courts. There's an actual report of what the role is; my understanding of the report is that there is an actual report of what the role of the commissioner is in the court, and I think it's an important topic for today.

My motion--and I understand, and I respectfully saw it fail--talked about where we are. Maybe we should get all the decisions made, whether or not they were through the ATI requests in terms of a complaint, and then see the ability of them to go to Federal Court to see what the actual answer is going to be. We need the ability to get those answers.

This report tells you what the role of the Information Commissioner is. We need to be able to read that report and have a look at it before we move to addressing what was blacked out in this report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights.

Here is another very interesting one. Of course, these are all public; I'm not making this up. It's all in the documentation that's on the website that supports this piece. There is a report called Women's Role in the Navy. Of course, that is a very important document. It was done in 2001-02 and talks about the role women have in the Canadian Navy, but it's in this section, not because of the role but because of the advice that was given to the minister at the time, and its importance in terms of its confidentiality.

I'm not going to comment on whether it was confidential or not confidential, withheld or upheld, but there was a discussion. When we are trying to introduce tough legislation or changes to policy or programs that are delicate--and I don't mean to use this word in this context, but delicate in the sense that it could be offensive to people--there could be arguments without hearing both sides of the issue. In this particular case, if the advice were not withheld in terms of its being in confidence because of this part of the act, this exemption to advice under operation, it could have affected the discussion that the senior naval folks had with the minister at the time on what we could do to make sure women play an important role in our navy and what that role will be, and based on what I understand, that role has been improved in the navy for women.

[The Chair, Liberal, Tom Wappel]

Mr. Wallace, it's utterly irrelevant. What does the role of women in the navy have to do with this?

[Mike Wallace, Conservative, Burlington, ON]

Okay. Thank you for that.

I'll move on to the next item: the 2000-01, “Reform of Cabinet Confidences”. That's another report that was referenced. It's a report that I think everybody should review. It goes to the heart of the matter of why you even have ATI people in departments; it goes to the heart of that.

If every report, including this one, Afghanistan 2006: Good Governance, Democratic Development and Human Rights were public, you couldn't take it to cabinet. You could never take a document to cabinet. Based on the act right now, the advice you're giving to the cabinet minister, the Prime Minister...those documents would become public. Everything would be done verbally; there would be nothing in writing.

I could verbally say a motion, which I did last week--my colleague from the Liberal Party didn't think that I had said it, but I said it twice--but providing it in writing gave people an idea of what it actually means, to make changes, agree or disagree and make sure it was in order, which I did.

In this case I think the report on cabinet confidences is important. It's included in the act. This report, which I have not seen, which has parts blacked out...the ATI person could have used the theory that there was advice in here that was either provided by other governments or by senior people in the department from Foreign Affairs and that it should not have been released. We have a report that talks about those issues. I would recommend to my colleagues that they look at that before they vote on this motion. We'll see if they will do that.

[A hon. member]

I'm going to look at it.

[Mike Wallace, Conservative, Burlington, ON]

There was another report in 2000 and 2001, again, long before we were in government. The case is in progress: the commissioner as an applicant. It's a very interesting piece. It has nothing to do with this particular item, I don't think, other than that it does deal with the advice that cabinet people get and the role of the commissioner when the commissioner applies for the information. As we know, the commissioner basically gets any document he wants. He can't make it public. That's not his role. But he can give advice to the minister and make it public.

After we hear from the commissioner after they hear the rulings, they could be--

[The Chair, Liberal, Tom Wappel]

Excuse me. I wonder if we could keep the conversation to a minimum so that we can hear the speaker.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chairman.

Once we hear from the commissioner.... Their office gets to see it, of course; we may or may not. We'll see what happens. But that report is important. Of course, we do have the report that was done in 2000-01 on advice and recommendations, which were encompassed in this exemption section of operations and good government.

There is a report on the cases that have been completed. That's where we should be at, Mr. Chair. We should be waiting until the case is completed on this. That was my assertion during the first motion on this item, and we will--

[The Chair, Liberal, Tom Wappel]

Mr. Wallace, that is the third time you've made that argument. Could you come up with a fresh one, please?

[Mike Wallace, Conservative, Burlington, ON]

Just to be fair, we have a couple of new people who will be voting, and it would be nice to hear--

[The Chair, Liberal, Tom Wappel]

I'm not going to permit you to continually repeat yourself.

[Mike Wallace, Conservative, Burlington, ON]

Thank you very much.

There's another report here that's new and wasn't listed elsewhere. In 1998-99, how was the choice made? My understanding of this report is that it talks about how the person was able to make the choice, based on advice provided. It talks about the importance and relevance of confidentiality to the minister on certain topics—of course not on everything—to help him or her make the right choice for Canada and present that.

The issue in this case is the Afghanistan report that is up for discussion and referenced in this motion. It may or may not have information or advice that would affect the choices of the Minister of Foreign Affairs. It's not just the minister; often deputy ministers and other senior people look at these reports, study them, understand what the issues are, and then make advice based on this report to the minister. I haven't been a minister, but that is my understanding of where things go.

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

You should be.

[Mike Wallace, Conservative, Burlington, ON]

The other issue is that a number of cases were completed--I'm not going to talk about them--back in 1998-99.

There's another report I referred to on the exercise of discretion, which I think is important in this area. Your definition of who gives the advice, when they give it, and whether it's protected or not is an important one. There is a report from 1998-99, Outsiders vs. Insiders. It really discusses the issue of whether a consultant provided the information or not.

I don't know where the information came from and who provided the information in the Afghanistan 2006: Good Governance, Democratic Development and Human Rights report, but it could have come from people who are not government officials. It could have come from NGOs or a number of areas. This is in Foreign Affairs and not National Defence or any other area, so we could have looked for the NGOs to provide us with their opinions. They're not really employees of the corporation, but their advice is very important to us.

We may have used the exercise of discretionary power to say, “You're right.” The ATI officer could say, “You're right, this isn't from the government, but these people gave us information in confidence so we could do good public policy and assist them, and that's why we've blacked it out.” We don't know that because we haven't seen the report, of course. I'm waiting patiently for the Information Commissioner to report on that--and I think we all should be.

Those are some of the reports that are in here. We've had some examples of the piece.

It has been mentioned that this report was made public or was available. I think a previous speaker said it was in the Globe and Mail. There's an assumption being made that the report in the public was the actual report that was blacked out, but we don't know that for sure. Another member has mentioned that the complete report was received by somebody in the academic world. We don't know for sure whether that was even the report that was requested.

As you know, only the requester of the information, the ATI report—and I think there have been a few—once they get a copy of what's been returned to them, can appeal that if they're not happy with it. In this case, for the report on Afghanistan, my understanding is that there have been appeals from people because they were not happy with what was provided to them.

But how are we going to be privy to the actual document? If we are not, as a committee, a requester, how can we have any authority to look at the unblacked-out area? So I have some concerns about where we're going with this motion. I don't think we actually have the right information in front of us. I think the act that we have in front of us clearly indicates to us that there are exemptions, clearly defined and stated in the act, and I only read three of them. There are more of them; there are 13 exemptions in the act.

[An hon. member]

Wow.

[Mike Wallace, Conservative, Burlington, ON]

Would you like me to read them? I could.

I want to say that when we had the commissioner here, I think it was maybe Mr. Martin who was asking him questions about whether there was any need to black things out and what the purpose of that would be. The deputy commissioner who was here, with the authority to answer the questions, because he has longer experience, said there were 13. And he listed some of the areas where you can legitimately and appropriately, I would say, tell the requester that that information is just not available. We don't have that information in front of us. We should be waiting until the commissioner does the work so we know what is available and what is not.

It was also indicated to me, as I've done some investigation of this, that things often get appealed and resolved— and it doesn't mean that the whole document gets revealed. It means there might be a sentence, or two or three, or a word in a sentence that gets revealed, or a couple of sentences, or a paragraph, and maybe, because the person is human, the ATI person in Foreign Affairs, in this case, may or may not have made any errors in what was put forward. But that is not this committee's determination. I think we should be waiting to deal with that.

One final thing, Mr. Chairman, and then I'll have to relieve the floor. I know everybody is upset. We got a letter—

[An hon. member]

Say it ain't so, Mike.

[Mike Wallace, Conservative, Burlington, ON]

You got a letter, Mr. Chairman, as chair of the committee, from the Information Commissioner via legal services. We had been slightly misled—and I just want to make sure people have it.

[A voice]

Oh, oh!

[Mike Wallace, Conservative, Burlington, ON]

No, no, it's fair. I really appreciate him bringing it forward. It was brought to my attention that the statistics with respect to the number of cases the Crown referred to the commission was inaccurate; the exact number of applications initiated by the Crown challenging jurisdictional issue against the Information Commissioner was 51. So there were three cases where the Attorney General of Canada was successful, and 94% of the cases were not. That means the Information Commissioner won.

I think we should be taking advantage of this. They mention here how they measure their success. They are taking an ombudsman role. They are specialized and have the knowledge and the expertise. This motion does not take advantage of that.

This motion tries to bring that forward, and I think we should only be looking at this after he's done a report. Then, in addition to that, we should be looking, in my view, at what went wrong with the other 48 cases brought forward and that the government of the day—a Liberal government—lost against the commissioner. Then if there are changes that need to be recommended, based on the culmination of that information, and if there's a theme that runs through it, let's do that.

But this motion in front of us, Mr. Chair, talks about urgency and about violations. I don't believe this is an urgent matter. I believe it implies there are violations. I think we should wait to hear the commissioner, and I would appreciate the mover of this motion deferring the motion until we hear from the Information Commissioner on this topic, on whether his office is even able to appear on this while they have an active file in front of them.

Thank you for your time.

[Some hon. members]

Hear, hear!

[Mike Wallace, Conservative, Burlington, ON]

How long was I?

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Wallace.

We have four people on the list so far who wish to address this motion as amended. We are going to start with Mr. Tilson, followed by Monsieur Vincent.

By the way, there's no point in looking at the clock. I'm not going to adjourn at 2 o'clock.

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

Mr. Chairman, I wouldn't expect that. We have a lot to say here.