Information & Ethics Committee on Oct. 20th, 2011

[The Vice-Chair, Conservative, Patricia Davidson]

I call the meeting to order.

This is meeting number nine of the Standing Committee on Access to Information, Privacy and Ethics.

We have with us today a witness from the University of Ottawa, Monsieur Drapeau, professor, faculty of law. With him we also have Mr. Juneau, who is here in an advisory capacity to Mr. Drapeau. He's assisting as counsel to Mr. Drapeau and he will not be speaking to the committee.

Mr. Angus.

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

Yes, sorry for this intervention. We'll get down to the business of the day very quickly.

As my colleagues here know, Mr. Del Mastro has raised this issue about the NDP convention financing and at hearings here he's made a number of statements about the transfer of illegal money, of gifts that were being handed out to the NDP.

[The Vice-Chair, Conservative, Patricia Davidson]

Is this a point of order you're making?

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

Yes.

I'd like to submit the letter from--

[Dean Del Mastro, Conservative, Peterborough, ON]

It's not a point of order.

[The Vice-Chair, Conservative, Patricia Davidson]

I think that's all been circulated to us, Mr. Angus.

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

I'd like it on the record.

[The Vice-Chair, Conservative, Patricia Davidson]

Mr. Angus, this is not a point of order. You're entering into a debate.

We'll continue on with our witness.

Go ahead, Mr. Drapeau, please.

Mr. Del Mastro, there will be no more debate back and forth between you two.

Mr. Drapeau.

[Colonel, Retired) Michel W. Drapeau (Professor, Faculty of Law, University of Ottawa]

I assume I have the floor.

Thank you, Madam Chair.

I wish to express my thanks to members of the committee for permitting me to appear before you this morning. I'm particularly willing and pleased to do so, especially under my guise as a professor of law at the University of Ottawa, with a measure of expertise with the federal Access to Information Act.

Let me open by noting that both the Charter of Rights and Freedoms and the Access to Information Act were enacted in 1982 within three months of one another. Since then these acts have been exhaustively tested by the court, and time and again the access act has withstood challenges to its raison d'être thanks primarily to the excellent work done by the original drafters. Therefore, the access act, like the charter, has aged quite well. Also, they've adapted to societal and technological changes that have taken place over the last 30 years. Therefore—and I've said it before in this committee—in my considered opinion the access act is by and large fine as it is.

I believe that the provisions of the access act, if followed and implemented properly, allow Canadians to access government records, while providing fulsome protection to privileged information, the disclosure of which could do harm to protected interests.

Canada is one of about 80 countries that recognize freedom of information as a basic right. Moreover, as a leading democracy, Canada's access act has quasi-constitutional status. You may ask, why does the access act have a quasi-constitutional status? It does because, first, the act contains a notwithstanding clause, which gives it an overriding status with respect to any other act of Parliament; second, because its purpose is twofold--democracy and public accountability.

The Supreme Court, in 1997, stated specifically what the principal functions of the act are. They are four: first, to improve the working of government; second, to make government more effective, responsive, and accountable; third, to facilitate democracy by helping citizens to have information required to participate meaningfully in a democratic process; and four, to ensure that politicians and bureaucrats remain accountable to the citizenry.

Also, I strongly believe that the Information Commissioner already possesses quite considerable powers to investigate complaints. To be sure, her powers are equal to those of a Superior Court of Justice judge. I agree, however, with the Information Commissioner, that her mandate should be extended so that she becomes more proactive in educating Canadians about their information rights. This committee, which oversees her work, should give her the green light in that regard.

I have one last point before turning to the subject of your inquiry. I also agree with Mrs. Legault concerning records currently held in ministers' offices. These records are already protected under the access act, as drafted. In accordance with the democratic objectives of the act, I believe very strongly that ministers' offices should be made subject to the act. How do you do this? Simple. An order in council pursuant to subsection 77(2) of the act and it's done.

I would like now to turn to the area your committee is presently examining, and that is the court action concerning CBC.

CBC came under the auspices of the access act in September 2007. However, when it did, the act was amended to include section 68.1 to protect “the journalistic, creative or programming activities” of the CBC. In doing so, Canada followed in the footsteps of the U.K. and Australia, which also have a national broadcaster that is subsidized with public funding. This is not surprising, given that our very own Supreme Court has already made it quite clear that journalistic sources have privileged protection under the law. However, in discharging its access obligations over the past four years, it appears that CBC went above and beyond simply protecting its journalistic interests.

I would be less than forthright if I did not say that in my opinion the CBC appeared to abuse section 68.1 in a blatant and ill-disguised exercise to either delay or deny access to records--or both.

While on the issue of delay, let me hasten to say that the CBC has used, with equal liberty, a myriad of other exemptions, exclusions, and exaggerated fees to not only deny, but more importantly to systematically delay the release of information. As the saying goes, “justice delayed is justice denied”. After all, what good is information requested from the CBC in 2007, if four years later the said information has yet to be disclosed?

As an experienced user of the act who writes on it and teaches access to information, it would be naive for me to think that what is at play behind all of that obfuscation is anything but an exercise in delaying disclosure of records for as long a period as possible.

Truth be told, contrary to most federal institutions, the act has very limited effect or impact on the CBC. Why? The CBC is subject to the act only for information that is not held for the purposes of journalism and programming. Yet at present the public position of the CBC is that any challenges by any requesters as to the correct application of section 68.1 should be made before the court, and not the Information Commissioner.

I find that suggestion condescending, because it would force requesters to engage in judicial combat, costing them thousands and thousands of dollars in legal expenditures and years of delay, against a public corporation that already benefits a great deal from the public purse. To suggest that course of action, in my words, is an insult to the very purpose of the Access to Information Act, democracy at play, and the intelligence of the Canadian public.

So what is the CBC to do? It's simple. First, to the degree possible, the CBC needs to make every effort to disclose, in a timely fashion, records that are not truly covered by section 68.1.

Second, when invoking section 68.1 the CBC should willingly cooperate with the Information Commissioner, who after all is an officer of Parliament speaking on your behalf, by giving her access to records that they contend are covered by their journalistic exemption. In doing so, the CBC might maintain a modicum of credibility and objectivity with the public it serves.

On a further point before I close, the CBC, like CTV, TVA, Global, The Globe and Mail, Sun Media, etc., has developed quite an expertise in the access domain, providing the Canadian public with a critical examination of public administration. When these news organizations submit access requests they do so in the performance of a public duty to inform the citizenry of the goings-on in government. To the citizens it matters little whose news organization investigates and reports on the public spending and performance of public institutions. What is important is that it gets done.

Before I open myself to your questions, permit me to raise one last observation. It is that the court has ruled that the purpose of any request is wholly irrelevant. The purpose of the act is to provide a right of access to information under government control. That right is available to every member of the public, and the intent, purpose, motivation, or the occupation of a requester has no legal significance. It is the records that matter and that cannot be modified, regardless of the presumed strategy of the requesters.

It's an honour for me to play a part in your examination, and I'm now open for questions.

Thank you.

[The Vice-Chair, Conservative, Patricia Davidson]

Thank you very much, Mr. Drapeau.

We will go to our first questioner, Mr. Angus, for seven minutes.

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

Thank you, Madam Chair.

Thank you for coming, Monsieur Drapeau and Mr. Juneau. Do you work together?

[Col Michel W. Drapeau]

Yes, we do.

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

Is he your assistant or partner?

[Col Michel W. Drapeau]

He is my assistant for the time being. He is soon to be a partner.

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

Okay.

I'm interested in what you said about your agreement with the Information Commissioner. We had the Information Commissioner here, a woman of incredible integrity. She warned us about the black hole of accountability that now exists within ministers' offices, with ministers trying to exempt information from the public. Do you see this as a problem?

[Col Michel W. Drapeau]

I see this as a huge problem. A minister is at the apex of the departmental hierarchy, and to suggest that documents that come and reside in his office or are created in his office in the performance of duty—not political duty but duty as a minister of the crown—would not be accessible under the act is a refutation of the very purpose of the act itself. It's an interpretation given by the Supreme Court with which I have significant difficulty. It can be cured easily, and I think it has to be cured in order to really give true meaning to the act itself. But to have it as it is now provides the tools to bureaucrats who do not wish to have certain documents, certain information records, disclosed. I anticipate that the size of the office of a given ministry will grow over time. It's going to take a up whole floor and the limits and the boundaries will extend. So that has to be corrected, and basically, it lies in your hands here.

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

Thank you.

I'm going to ask a question completely off the topic and you don't have to answer. I notice your name is Michel Drapeau. It's a francophone name. Do I detect a small Scottish accent? Were you educated in Edinburgh or any place over there?

[Col Michel W. Drapeau]

No, I was educated in Quebec City, born in Quebec City, left Quebec City as a unilingual francophone back in 1961 and spent a good part of my life in the military. I travelled abroad and, for some reason along the way, I must have fallen in love with scotch and I'm quite proud of it.

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

Well, you know, I fell in love with scotch too and I might pick up a brogue by seven or eight o'clock in the evening.

Anyway, I'm interested in this issue of the black hole of accountability. I'm not going to get into too many side issues, but we saw the issue with the G-8 spending where the Auditor General couldn't find the documents, and we found out later they were run through the minister's constituency office. There was certainly widespread speculation in the media that by running it through the constituency offices it was effectively beyond the reach of the Information Commissioner, so millions of taxpayers' dollars were allowed to be flowed because it was beyond access to information.

Do you see that this is the kind of wedge that is going to be put against the information act?

[Col Michel W. Drapeau]

I think the potential of a wedge is there, but to be very fair and very reasonable, as it stands, I think it appears far worse than what it actually is. The Supreme Court in its decision says that when a document has basically no fingerprints of any bureaucrats, it has been created within the minister's office.

There could be instances where advice of the minister's exempt staff to him will cover these kinds of records, but for instance if a record was prepared and staffed by low-level staff and went all the way up to the deputy minister—a briefing note would be a case in point—and submitted to the minister, you could not argue that this is ministerial records. It's departmental records and the minister got a copy. Under the access act, you may not get the copy of the minister's records but you will get a copy of the briefing note itself.

My point is that if you leave it as it is, the office of the minister will grow. It will take over the correspondence unit. It's going to take over the policy unit. It's going to take over the public affairs unit. And then you're going to start creating records inside the minister's office. I'm not giving a recipe to make it better; in fact it's going to make it worse.

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

A veritable black hole.

We had the Canadian Taxpayers Federation here. They told us they had had about a half-dozen requests with CBC. How many have you filed?

[Col Michel W. Drapeau]

How many have I filed? I couldn't tell you the exact number. I file approximately a thousand requests a year, not only to CBC, of course, but to a whole lot of federal institutions. That's the expertise we have, and not only with Canadian federal institutions but provincial, and we file some with the U.S.—

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

But can you tell how many for CBC in particular?

[Col Michel W. Drapeau]

To CBC over the past year—50, 60, 70, 80, in that range, which to us is....

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

That's not too much—50 or 60. That's not a lot.

Maclean's magazine describes Quebecor as one of your clients. Do you sell this information to Quebecor?