Information & Ethics Committee on Nov. 24th, 2011

[The Chair, NDP, Jean Crowder]

Good morning, committee members.

Before we go to the witnesses, I understand the witness has a slightly longer than ten-minute statement. Committee members have agreed it would be acceptable for the witness to take a little longer.

Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Madam Chairman, I have a point of order.

Madam Chairman, members of the committee, since submitting my motion a little more than two weeks ago....

I should say at the outset how much I've missed each one of you.

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

I've missed you, Dean. I've been thinking of you every day.

[Dean Del Mastro, Conservative, Peterborough, ON]

This trial separation has been hard on all of us.

Since submitting my motion two weeks ago, the CBC has cooperated by providing the committee with documents. We appreciate that.

We've also had some advice from the law clerk that was clear in indicating that while my motion.... My motion contained conditions for all documents to be viewed in camera. The law clerk indicated that the ethics committee would avoid any offending sub judice convention if we were to proceed in that fashion. And I appreciated that.

Over the time period, the CBC has publicly released some of the information that was part of my motion. This information was previously deemed to be under section 68.1 of the Access to Information Act, specifically. I have the listing of their vehicle fleet, which was publicly released. We appreciate that, as well.

It demonstrates to me that the concerns about how section 68.1 was being applied and the allegations that were specifically levelled by the Information Commissioner in this regard were in fact valid. That was the reason behind the motion in the first place.

Secondly, in a separate process to this committee, the Federal Court of Appeal noted in its ruling yesterday, in paragraph 13, that

...for 13 of the 16 files, no records were examined to justify the refusals, the CBC having determined that the exclusion under section 68.1 of the Act applied from a simple reading of the access requests.

This is again validation of the testimony made by the Information Commissioner at this committee.

All this is to say, Madam Chairman, that I do not see the need at this point to open any sealed envelopes that have been provided to this committee. I want to make sure the concerns raised by the CBC and others in this regard will be respected. That being said, the balance of the information will be viewed in camera at this committee to help inform members, and members of the Conservative Party will keep all information contained in those documents strictly confidential.

Thank you.

[The Chair, NDP, Jean Crowder]

Thanks, Mr. Del Mastro. Of course the committee will be dealing with this matter on Tuesday.

Mr. Del Mastro, with your point of order, are you suggesting that we return the sealed documents to the CBC?

[Dean Del Mastro, Conservative, Peterborough, ON]

I'm happy that they be returned.

[The Chair, NDP, Jean Crowder]

Okay. I will instruct the clerk to return the sealed documents to the CBC.

Before we go to the witnesses, Mr. Angus has a point of order.

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

We won't be too long, because Monsieur Lacroix is the reason we're all here.

I'd like to thank my honourable colleague for that intervention. I think it's reasoned.

Our concern was always the issue of parliamentary interference, whether intended or not. But it has serious implications, and we do have a larger responsibility. And in light of the Federal Court ruling, which today we should be able to hear some answers on and where we're going, and the letter from the Information Commissioner advising us that she is now looking into this and she would prefer that we stay within our mandate and allow her to follow her mandate, I think that would be wise. So we're certainly willing to continue working as a committee, because we have a lot of important business here.

Thank you, Mr. Del Mastro.

[The Chair, NDP, Jean Crowder]

I believe all committee members now have the letter from the Information Commissioner. If you don't, please let the clerk know.

Seeing no other points of order, I'm going to turn to our witnesses.

We will allow a little latitude on the length of your presentation, Mr. Lacroix.

[Hubert T. Lacroix, President and Chief Executive Officer, Canadian Broadcasting Corporation]

Madam Chairman, good morning.

Members of the committee, I thank you.

I'll try to be as brief as I can.

You've invited us here to explain why we have been in court with the Information Commissioner.

As you know the Federal Court of Appeal released its decision yesterday. The court has ruled that the commissioner has the right to examine CBC/Radio-Canada records relating to journalistic, creative or programming activities, subject to certain exceptions including, most importantly, journalistic sources, which is unequivocal in our opinion. The court said: “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.”

We are still reviewing the judgment. At first reading, we feel that this judgment clarifies the ruling of Justice Boivin in a manner which might satisfy most of our concerns.

This finding is extremely important to us. Protecting our journalistic sources was one of the most important considerations for pursuing this court challenge.

As we have said from the beginning, the courts are the appropriate place for this issue to be decided.

The court process has triggered a lot of unprecedented action. However, through it all I believe what has been lost or distorted in the general confusion is our actual record on public accountability and access to information--and what this court challenge was all about.

This court challenge was only about the jurisdiction of the commissioner. It was never, and still is not, about the information we release to the public under access to information. The Federal Court of Appeal decision doesn't increase or decrease a requester's ability to access our journalistic, creative, or programming activities, or increase or decrease the information we will disclose.

Let me now address our actual performance, because accountability and transparency are central to our role as a public broadcaster and absolutely critical to our credibility, as is our arm's-length relationship with government.

We have an independent board of directors, including an audit committee and a governance committee. They are all independent and appointed by the government. It's their responsibility to oversee our budgets and operations and ensure that our programming and journalistic resources are being spent wisely.

We also provide detailed financial information and reports to the CRTC. This ensures that we are accountable to the public in relation to our licence conditions.

We have the Auditor General of Canada, who reviews and signs off on our financial statements each and every year, and who conducts a comprehensive special audit, every five to ten years. His report is tabled in Parliament.

We also report to our minister and to parliamentarians on the fulfillment of our mandate and objectives via our corporate plan and annual meeting, and our annual report. We even provide quarterly financial information to Canadians, together with an analysis of our performance during the period.

And, yes, we are accountable under the Access to Information Act for the general administration of our corporation.

That is how we are accountable. But there is more. We have taken steps to proactively demonstrate our accountability. Maybe you'd like to know how much I, as president and CEO, am charging to the company for working meals and business travel. That information is already public and I'd like to walk you through it.

Please go to your folders. Take a look at tab 1-A. You'll see a printout of what you would see if you went to our corporate website and clicked on “transparency and accountability” and then“proactive disclosure”. You would see a list of names including mine. Pick one, literally any one, and you'll see the expenses each of us claimed every three months going back to 2007, when we became subject to the act.

Pick mine and you'll see, among other things, if you flip through the pages, that my visit to Quebec City and Rimouski this past summer generated a cost of $1,608.73 for the public broadcaster. I also spent $5,472.29 to travel to Calgary and Saskatoon to meet with staff and unions, speak at the University of Saskatchewan, and meet with various local opinion leaders.

But there's more. Maybe you'd like to know how CBC/Radio-Canada decides what to release under access to information. Maybe you'd like to know what kind of information has already been requested under access to information and released. We've already made that information public--and by the way, no other organization has done that yet.

Last Wednesday, Treasury Board President Tony Clement announced that by January 1 all departments and agencies subject to access to information will post summaries of completed access to information requests on their websites. We post more than the summaries. We actually post the documents themselves for requests of general public interest, and have been doing so for one year.

Go to your files again, please.

In your folder, under “Access to Information”, Tab 1-B, is a print-out of what you would see if you went to our website. This section entitled “Access to Information” contains more than 27,000 pages of information requested under Access to Information. It is available to anyone.

You will also see, if you click on my trips to Ottawa, that I have stayed regularly at the Château Laurier. Quebecor papers have called this information proof of my “taste for fine hotel rooms and pricey lunches”. It is of course their right to take the information we have made public and to run inflated stories based on the information that we publicly release. Our responsibility, our commitment to accountability and transparency, is to make this information public. They can twist it and distort it in whichever way they want. That won't deter us.

You will also find on our website a copy of the guidelines we use in applying section 68.1 of the act.

Please go to tab 4-A.

The commissioner said she was concerned about the guidelines; concerned that we decide what information is excluded based on the nature of the request. Our approach was designed to avoid charging fees unnecessarily for collecting documents that clearly fall under section 68.1.

Nevertheless, we have already gone ahead and changed our practice.

We have also made significant progress in reducing the number of our deemed refusals, those requests to which we haven't responded quickly enough, and which accounted for the F we received last year from the commissioner.

As you will see in your folders at tab 1C, deemed refusals now represent less than 5% of all requests, a commitment we made to the commissioner in March 2011. You will also see at tab 1D that as of November 22, 2011, we have dealt with 1,449 of the 1,477 information requests we've received. Of course new requests continue to come in.

However, none of this changes the fundamental principle that if you—or any other broadcaster that competes against us for audiences, producers, talent and programs—want to know how much Peter Mansbridge gets paid, or how much Radio-Canada spent developing its hit show Les Enfants de la Télé, or what CBC's promotion strategy is, including how much it spends on advertising George's show on billboards or through a special launch of his season at TIFF, that information will not be disclosed publicly. That is because the law draws a clear line at those things that would undermine our independence, our prejudice, and our competitive position.

Yesterday's judgment does not change that fundamental principle. Without the protection for journalism, programming, and creative activities, we could not operate as an independent public broadcaster.

As a final point, you invited Quebecor and others here to share their opinion on our performance. I heard and read some pretty amazing things, so in your folders you will find a document correcting the record under tab 2, which addresses some of the claims that were made before you in the last weeks.

For example, I just can't believe that in answering one of your questions Mr. Drapeau did not tell you that on September 7, 2010, his office filed 72 information access requests on the same day. Quebecor's strategy is clear. Their properties will continue their campaign. They believe they can benefit from diminishing the role of the public broadcaster. They have a self-interested agenda, and they will continue to use access to information and do stories in their newspapers and on their television stations to pursue it. So be it.

Where do we go from here? Parliament can always change the law, but it must do so in a way that doesn't turn what is currently an independent public broadcaster into a state broadcaster. In the spirit of the Federal Court of Appeal's decision, we believe this committee should now consider language that clearly protects journalistic activity from access to information.

In the meantime, we at CBC/Radio-Canada will keep implementing our 2015 strategy to improve the services we provide to Canadians. We will keep making great Canadian programs and will broadcast them in prime time. We will work to deliver better value to Canadians in the regions and across all of our platforms.

We're ready for your questions, Madame Chair.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Lacroix.

Just to remind committee members and the witnesses that each member has seven minutes, which includes the member's question and your response, and I will be pretty rigorous about cutting you off.

Mr. Angus, for seven minutes.

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

Thank you, Madam Chair.

Thank you, Mr. Lacroix, for a very thorough presentation.

As you know, yesterday the Federal Court of Appeal ruled on CBC's decision or desire not to share certain information with the Information Commissioner. We take great pride in the role of the Information Commissioner. The Information Commissioner has a specific task to represent Canadians and to assure accountability, so when the iIformation Commissioner raises a red flag, I think as parliamentarians we have to be very serious about what that red flag means.

We were certainly concerned in our caucus about this committee interfering with the role of the Federal Court, but we believe that the CBC had a right to go to the Federal Court of Appeal, and the Federal Court of Appeal has rendered its decision. The very straight-up question for us is that now that the Federal Court of Appeal has made a decision, are you willing to work with the Information Commissioner, to get this issue behind us?

[Hubert T. Lacroix]

I guess we've always been interested in working with the commissioner. The Federal Court of Appeal rendered its decision yesterday. We are going to look at this decision in even more detail. As I said in my remarks, at first blush and after a first reading, it seems to deal with the most important of our preoccupations. But as to whether we are willing to work with the commissioner, we always have, we always will. We have had a very good relationship with the office of the commissioner.

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

Are you considering an appeal to the Supreme Court? We want to assure taxpayers that we are getting value for the dollars being spent. We want to ensure that it's fair to get a reading of what section 68.1 is, because it is a very important exemption, but we also want to get back to business. You say you're studying it. Does that mean the possibility of going to the Supreme Court, or studying it in terms of how you're going to meet the...?

[Hubert T. Lacroix]

We're going to have conversations with the commissioner, as we do in a normal case, yes. I have to admit that we just spent two days in a board of directors meeting at CBC yesterday. We finished late yesterday afternoon and came here to prepare for this committee. We've obviously read the decision. We'll make a decision in the next couple of days. That's not an issue for us, but we need to know the exact details. There's an interesting and important study of section 68.1 there, but as I said to you, one of the most important points that we had and that we thought needed to be protected was our journalistic activities, our journalistic sources. After the first read, it seems that has been correctly protected by the appeal court.

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

We've certainly been aware of the very visible, vocal media war between Quebecor and CBC, and we are also concerned about how we ended up being dragged into that war, because much of Quebecor's war has been based on access to information requests.

Given the Federal Court of Appeal decision, do you believe the right to protect information from third-party competition is protected? How does that maintain the balance, ensuring that taxpayers know that money is being spent in an accountable, straightforward way?

Until now, it seems that CBC has been in the position to make that decision, and we frankly have heard many seemingly arbitrary decisions made by CBC as to what is acceptable to the public and what is not. How are you going to ensure that you are able to maintain your competitive position in the market and also ensure that this competitive advantage is not being used to squash legitimate information requests?

[Hubert T. Lacroix]

We believe in accountability. I told you that it's one of the core principles and core values of the public broadcaster. You can't be a public broadcaster without that. In my remarks I told you the list of things we are subject to, to prove that accountability. This decision yesterday did one thing: it allowed the commissioner to review the information. The commissioner knows that section 68.1 still lives, that nobody has access to programming, journalistic or creative activities. She will review that information and we assume will make the right decisions and have conversations with us on the information she'll release.

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

The Information Commissioner told us she believes that access to information denial should be based on an injury-based interpretation. What does that mean? Is that a much narrower exclusion? How does CBC see that lens that the Information Commissioner is applying, and are you willing to work with her through her interpretation of how section 68.1 should be read?

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

I'll take that one.

I think the commissioner was alluding to changes that she would like to see in the law. The law as it stands now doesn't have any injury-based test in connection with the review of our programming or journalistic or creative activities. So right now we'd be working with the commissioner on the law as it currently stands.

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

In terms of the very vocal media war with Quebecor, you released a document at the beginning of this set of hearings in which Mr. Péladeau said about the CBC that he was “astonished by the abuse that it has been running on false and malicious information”.

Do you stand by your claims with Quebecor? Do you believe it's in the public interest to respond to Quebecor? Certainly Quebecor and Sun Media have been launching a full-out assault on the CBC. Are you going to be in a turf war with them now on this information fight? How do you see your role with them?

[Hubert T. Lacroix]

That's a very important question. At some point in time, forbearance is no longer a virtue, and when you cross a certain point the public broadcaster needs to stand for its employees, its brand, its journalistic activities, and the quality of the services it renders to Canadians every day. The information circulated by and promoted by Quebecor goes to the brand, distorts the story to the point where I don't even recognize my expenses. Last week there was a story about an important project that we're trying to do in Montreal. We're trying to scale down our building. We have about 1,300,000 square feet in Montreal. We'd like to reduce that to about 800,000 or 900,000 square feet. We have no dollars to do that. So what we're trying to do in Montreal is get a developer interested in the land. The developer would take the risk, and we'd take the upside, but we would be improving our facilities by scaling down, at no cost to the taxpayer. This is what we are supposed to do—maximize the value of the assets we have. When we do that the headline in the newspapers says a Taj Mahal is being built in Montreal by the CBC. That's the kind of stuff that we have to stand up and denounce.

[The Chair, NDP, Jean Crowder]

Thank you, Mr. Lacroix.

Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Madam Chairman.

Mr. Lacroix and Madam Bertrand, welcome to the committee this morning.

Mr. Lacroix, I listened to your comments and I appreciate the walk-through you've completed. Can you tell me the documents that you're actually providing access to, the amount of those expenditures? When I do a read-through, it seems to me it would be a fraction of 1% of the CBC's expenditures that you're actually providing information on. It's a good first step, but frankly this is a very small amount of transparency in the CBC's overall budget and expenditures. It doesn't deal with much of how the tax dollars are being spent, correct?

[Hubert T. Lacroix]

On our site we have 27,000 pages of requests that we've answered. We've released 80,000 pages on all sorts of requests relating to general administration, because those are the words that you will find in the act. The Access to Information Act applies to the general administration of our corporation. We don't do general administration expenses as an activity. We do programming. And our programming, journalistic, and creative activities are protected by the Broadcasting Act and the Access to Information Act from being disclosed to people who could benefit from this information at the expense of our corporation.

[Dean Del Mastro, Conservative, Peterborough, ON]

I've heard some very reasonable concerns. For example, if you're only going to provide public access to a fraction of 1% of your overall expenditures, then you could simply move your expenditures to a place where your section 68.1 exemption would apply. You could move your hospitality spending under a new column—call it programming, call it creative, call it journalistic—and now all of a sudden you don't have to provide that access to information, or that transparency that is the intent of the act.

For example, it's difficult to understand why CBC didn't publicly release the request that came in on your vehicle fleet. In fact it's impossible to understand why or how, under those three categories of protection, you didn't publicly release this. I think that any reasonable person would have to conclude that if the Information Commissioner had been provided these documents she would have released this information. I think that's why CBC has released it. You didn't have grounds not to release this request.