Mr. Chairman, members of the committee, thank you very much indeed for giving me an opportunity to make this presentation about the advisability of reforming the Access to Information Act.
The New Brunswick Office of the Ombudsman acts as an officer of the legislature in matters pertaining to access to information and privacy. It is our firm belief that it has taken a very long time for an in-depth reform of the federal act, as you said yourself, Mr. Chairman.
The New Brunswick legislature is also involved in a thorough review of its access to information and privacy laws. We are sure that the leadership that the federal Parliament could show in this area would have an impact on all the laws on this subject in the country.
In recent days, Mr. Chairman, I have read with interest the testimony you heard from Mr. Marleau, his assistants, our colleague, Mr. Loukidelis, and other witnesses who appeared before the committee this winter. I am particularly encouraged by the contribution made by committee members, by the insightfulness of their questions and by the commitment to improving the administration of this legislation in Canada. Too often in our province, New Brunswick—as I was telling the committee clerk—legislation is passed without careful study in committee, and the work of Parliament is cut short and becomes little more than a political game. I think Canadians expect more from their elected representatives, particularly when it comes to open government and to promoting their democratic rights. I am pleased to see that it is exactly this type of parliamentary concern that motivates all members of this committee.
I would like to say at the outset that our office supports all 12 of the recommendations made by the Information Commissioner of Canada. Could we go further? Yes, definitely. However, I maintain that the recommendations put forward by Mr. Marleau are relevant, strategic and easy to implement. The idea is therefore to make these essential changes quickly so that his office can defend and promote the main objective of the Access to Information Act for the benefit of Canadian taxpayers. We think this approach would enable committee members to achieve the broadest possible consensus and to speed up the reform process that Canadians are seeking.
In the time I have, I would like to discuss briefly two of Mr. Marleau's recommendations, and to raise two related issues, one general in nature and the other specific, having to do with the interpretation of the act being reviewed by the committee. Finally, as a native of New Brunswick, Mr. Chairman, I will be making my presentation in both official languages.
The first question has to do with the nature of the rights protected by the Access to Information Act. As Mr. Loukidelis said so well, access to information regimes are essential to the protection and promotion of democracy. However, I think it is important that the act reflect not only this fundamental democratic value and right as an objective—as is stated in section 2 of the act—but also that the entire act be reviewed so that it properly explains the fundamental nature of the rights it protects.
Let me explain what I mean. In our most fundamental piece of legislation, the Canadian Charter of Rights and Freedoms, we Canadians do not have explicit guarantees regarding access to information or even privacy. As you know, section 7 of the Charter guarantees every Canadian the right to life, liberty and security of the person, while section 8 refers to the right to be secure against unreasonable search or seizure. We compare poorly to other countries or to other constitutional law systems. However, sections 7 and 8 of the Charter were modelled on provisions of the Universal Conventions of Human Rights that guarantee the right to privacy.
In Canada, we have had to develop an entire body of case law on constitutional law, in order to make the guarantees set out in sections 7 and 8 of the Charter into a genuine privacy guarantee. I am talking here about privacy, even though we are discussing access to information, but access to information legislation in Canada essentially guarantees two things: the first is the right to know what public bodies may know about Canadians; and second, the right to access government documents to ensure transparency and a well-informed electorate.
So the sources of this fundamental right are taken from the concepts of liberty and security of the person that are set out in section 7.
In Canada, the courts have recognized that these rights have a quasi-constitutional value. Mr. Marleau made this point as well. These are rights that protect our fundamental rights and freedoms. As a result, statutes such as the Access to Information Act must take precedence over other acts passed by Parliament in cases where there is a conflict. The exemptions set out in the Access to Information Act must be interpreted restrictively by the courts in order to give the legislation a purpose that is dominant and corrective.
These approaches to interpreting statutes are solidly rooted in Canadian law. In my opinion, Parliament can nevertheless be more explicit regarding the nature of these fundamental rights. For example, I am thinking of section 2, but also section 4 of the act, which talk about the guarantee for access rights. There are other things Parliament could do, including the insertion of a preamble, references to constitutional guarantees and to international law or to the principles for drafting laws.
I think that Mr. Tromp, who appeared before the committee a few weeks ago, referred you to drafting principles regarding the right to information that have been adopted by the United Nations. It is important to take these principles into account in the context of reforming the act, and to recognize the fundamental nature of the right being guaranteed. That was the first main point I wanted to make.
The second, more specific submission I have is an example of the need to take access rights seriously as fundamental human rights, together with the need for Parliament to be explicit about this order of priorities. I am coming to the point of solicitor-client privilege and the recent experience in New Brunswick, with that exemption.
I note that Mr. Marleau has remained silent on this topic. But the fact is that a year ago, in February, Mr. Marleau's best lawyers, along with Mr. Loukidelis's, and lawyers from the Ontario and Alberta privacy information commissioners' offices and the New Brunswick ombudsman's office were down the street at the Supreme Court intervening in a case where an order of the Privacy Commissioner of Canada was under review.
The Supreme Court's decision in Blood Tribe came out last summer. The court decided that the Privacy Commissioner did not have the authority under PIPEDA to review solicitor-client records in the private sector for the purpose of verifying those claims. I know that Blood Tribe is distinguishable from the practice before the Information Commissioner, and the provisions of section 36.2 are fairly strong and would help distinguish Blood Tribe and the arguments there. But section 36.2 is not explicit about giving the commissioner access to solicitor-client records for the purpose of verifying these claims.
The purpose clause in the Access to Information Act is in fact no stronger than the purpose clause in PIPEDA. PIPEDA had a very strong purpose clause, talking about the fundamental nature of the rights protected there, and the court made no reference to this. It didn't really count for anything. In fact, the court, in its decision, has left the door open and invited litigation and argument on whether or not a purpose clause like section 36.2 would be sufficient and would pass scrutiny with respect to the law of solicitor-client privilege in Canada, as decided by the court.
That's basically the Supreme Court tossing the ball back at Parliament and saying that their job as magistrates is to defend the rule of law. Now, Parliament is supreme and Parliament can decide the circumstances under which solicitor-client privilege, as a fundamental aspect of Canadian law, may be breached. But Parliament has to be explicit. I think in this instance Parliament should be clear about maintaining the right of the Information Commissioner and the Privacy Commissioner to review these claims for the purpose of verifying the claim.
My submission is that when Canadians go into their own private lawyers' offices for advice, their expectation of confidence and privacy is clear. But we have, I submit, a much more reasonable and clear expectation of privacy in that context than would a public official if he was doing something that the Attorney General had advised him that he should not be doing. You can't compare solicitor-client privilege in the public sector with the validity of those claims in the private sector. Canadians generally recognize that the advice you seek and receive from your lawyer has to be treated confidentially, but the overall expectation of Canadians is that in appropriate cases crown claims of solicitor-client privilege should be waived or may have to yield to the imperatives of transparency.
Even though as a general rule such claims must be as rigorously defended in the public sector as in the private sector, the existence of the privilege has to be founded on a credible system of independent verification. Otherwise, we open the door to impunity.
I think that's pretty much what's happening in New Brunswick today. Canadians won't lose faith in their legal system if ministers and crown lawyers have to “fess up” and submit claims of privilege, based on solicitor-client privilege, to Mr. Marleau's review. But if Parliament or the courts come and say that Mr. Marleau has no authority to review records over which such exemptions are claimed, they'll lose faith not only in Mr. Marleau's office but also in the courts and in Parliament.
In my province, the government is on the cusp of adopting a legislative carve-out based on federal access legislative provisions exempting cabinet confidences. This would exempt, in New Brunswick for a first time, not only cabinet confidences but solicitor-client records as well. It would go beyond that and it would carve-out, according to the provisions of Bill 82, which died on the order paper but is probably coming back, all records in the Attorney General's office, excluding them from the application of the act.
Those are our submissions, Mr. Chairman. It's imperative that Parliament reaffirm the fundamental nature of the access rights protected under the Access to Information Act and insist on the commissioner's access to all records, without exception, for the purpose of verifying the validity of any exemption claimed. This would be consistent with the UN drafting principles 1 and 4, dealing with maximum disclosure and a limited scope of exemptions.
I know my time is up, but I would like to touch briefly on two of the recommendations the Information Commissioner has made. The first is the recommendation with respect to executory decision-making over administrative matters. I certainly read with interest the exchanges between Mr. Marleau and committee members concerned with the gulf between amounts charged to users and the cost of administering the system. I submit that the problem lies not in raising the amount of fees collected or trying to find a user-pay principle. That would only constitute a cost disincentive. The answer to that problem is in doing what the commissioner has recommended, and that's to increase the commissioner's authority to deal effectively with administrative matters such as delay and fee issues, and to put in place, through his order-making power, appropriate benchmarks for the way these types of complaints have to be handled down the line. That's going to diminish the overall cost of administering the system.
Again, comparing our experience in New Brunswick to the federal experience, we really do have a very light regime. We're one of those early legislative models. The act probably hasn't changed much since 1978. But it has the merit of having a thirty-day turnaround time limit, with no possibility of extension, and a $5 access fee. Things move at a slightly faster pace than under the federal system.
Finally, my last point is with respect to the express mandate to advise Parliament on legislative matters related to access to information and to educate the public about their rights and how to use them. We think this is also a very central recommendation that the Information Commissioner has brought to Parliament. It's the best way of achieving the act's purpose, which is to improve the quality of our democracy.
I will again bring the UN principles on drafting access to information legislation to the attention of committee members. Principle three of those nine principles asserts that access laws should require the promotion of open government. To read from the UN text:
Public bodies must actively promote open government Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realized. (...) Promotional activities are, therefore, an essential component of a freedom of information regime. (...) The law should require that adequate resources and attention are devoted to the question of promoting the goals of the legislation.
As a minimum, the law should make provision for public education and the dissemination of information regarding the right to access information.... Ideally, such activities should be undertaken both by individual public bodies and a specially designated and adequately funded official body—either the one which reviews requests for information, or another body established specifically for this purpose.
I think there's also a training component in that principle, but it would have to be a central ATIP office that would look after training government employees on the administration of the act.
The piece that Mr. Marleau's office can do, and can do well, is the public promotional piece, which is going to help Canadians use the legislation responsibly, in a way that will diminish delays and yield results in terms of a more informed electorate.
I would like to thank you once again, Mr. Chairman, for giving me this opportunity to appear before the committee today. The interest of committee members in this issue is noteworthy. In the context of a minority government, this may be the best opportunity to move this matter forward. I think the recommendations made by Mr. Marleau are meant to be consensual. I therefore hope that committee members will be able to work together to find this consensus and make the changes that Canadians want to see.
Thank you.
