Information & Ethics Committee on Oct. 20th, 2011

[Col Michel W. Drapeau]

I don't sell. I'm in the business of law, so I don't market that. It's part of the public record that I've acted for Quebecor in the past, and as a result of it, my dealing with that particular client, which is part of the public record, is protected under client-solicitor privilege and I cannot address any questions or queries in that particular field.

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

So they're one of your clients, but you won't.... Would you give us the access to information that you've done on behalf of Quebecor so that we know the kinds of questions that are being asked?

[Col Michel W. Drapeau]

No, I could not do that in that particular sense because I would be violating my client-solicitor's privilege.

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

But you're here as an independent. You didn't tell us that you worked for Quebecor. You didn't tell us that they were your client. Now when we ask if there's any information, you say, well, they're your client and you can't tell us anything.

You told us you were here as a law professor. I'm fascinated by your interest in law, but now I find out that you're not going to tell us anything because you have this working relationship with Quebecor. So could you at least let us know the kind of work you do for Quebecor, the kinds of questions you're asking, how often, how many?

[Col Michel W. Drapeau]

Let me fuel your fascination further. I made it quite clear by accepting an invitation, an honour to be here, which I feel commended to come, and I did, that I will speak as an expert and authority on access and as a professor of law.

To speak to you as to the parameters and the changes and whatever pressures upon the access act itself, I am pleased to do that.

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

But as a professor of law, certainly you would think if you were asked to go into a courtroom and give evidence it would certainly be important for the jury to know that you are giving evidence on behalf of a client, not on behalf of someone independent.

This is a specific issue, which is Quebecor's fight with CBC. They're one of your clients, and yet you didn't tell us that. I find it surprising that, as a professor of law, you would go into a courtroom and tell everybody that you were an expert, as you obviously are, but not say to the jury, by the way, I work for these guys; I have an interest in working with them.

[Col Michel W. Drapeau]

If you'd listen for a second I will tell you. I would be very surprised, given your renowned knowledge of the access domain and so the public record is quite clear.... I do practise law, and I do practise law principally in the access domain. I have clients, to inform you, that range from media organizations, MPs, political parties, corporations, and so on.

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

Yes, but none of those parties are written about in Macleans. What's written about is your relationship with Quebecor as a client.

[The Vice-Chair, Conservative, Patricia Davidson]

Mr. Angus, your time is up. Please give Mr. Drapeau a chance to answer.

Mr. Drapeau, do you have any further comments?

[Col Michel W. Drapeau]

And I made it quite clear, as I said right from the get-go, that I could not and would not--and Quebecor just happened to be one of the clients--discuss my work for them in this particular forum or any forum.

[The Vice-Chair, Conservative, Patricia Davidson]

Thank you very much.

We will now move on to Mr. Del Mastro for seven minutes, please.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Madam Chairman.

At the outset I'd say it sounds like Mr. Angus would like to continue his hearings on union sponsorship of the NDP convention. We may well give him that honour.

Mr. Drapeau, first of all, I apologize. Mr. Angus is very confused. Let's just straighten the record out here to kick things off. Is Quebecor currently in court with CBC? Are they currently fighting with each other?

[Col Michel W. Drapeau]

Not as far as.... Am I speaking from the public record perspective?

[Dean Del Mastro, Conservative, Peterborough, ON]

No.

[Col Michel W. Drapeau]

The answer is no.

[Dean Del Mastro, Conservative, Peterborough, ON]

Exactly.

[Col Michel W. Drapeau]

That I know....

[Dean Del Mastro, Conservative, Peterborough, ON]

This is about the Information Commissioner actually having gone to court with the CBC to actually say you must release these documents to me and I will determine if section 68.1 applies.

The court, Justice Boivin, in fact ruled, yes, you must give the Information Commissioner access to these documents, and she will determine if it's appropriate to release them or not.

And the CBC is saying they don't think so, that only a court will tell them if they have to release these.

By the way, the court did tell them they had to release them.

[Col Michel W. Drapeau]

Check.

[Dean Del Mastro, Conservative, Peterborough, ON]

And now they're appealing it. That's what this is about.

Mr. Angus is very confused.

You indicated that you thought the CBC's approach is condescending. Can you expand on that a little bit?

[Col Michel W. Drapeau]

Well, to suggest that the legislature back in 1982.... And I purposely reflected upon the fact that both the Charter of Rights and Freedoms and the access right, which is a quasi-constitutional right, were passed within the same session of Parliament and have been in existence since then, and there is a scheme inside the act to name an officer of Parliament, the Information Commissioner, who in Canada has the mandate and the powers to investigate a complaint. To suggest that this is not good enough, and the Information Commissioner.... To this day, there has never been a leak. I mean, there has never been any confidential information obtained during her investigation that has ever been handled in anything but in accordance with the law. To suggest that's not good enough.... They have the expertise, the people, the mandate, and the law on their side. That we have to go to a judge and ignore this bureaucracy, this expertise, and so on, and not only go to the court, but it has got to be a court that says, as we say.... It has been to court, the Federal Court, and the decision is quite readable and quite reasonable and quite acceptable to all. That decision by Mr. Justice Boivin says, basically, the Information Commissioner is only doing her job, and by the way, when doing her job she may agree in some cases that records for which an exemption is claimed under section 68.1 is appropriate.

That was not good enough. We're now before the Federal Court of Appeal, which had a hearing on October 18.

First of all, the suggestion that this is the way to do it would imply that the only recourse for requesters, not only myself but ordinary Canadians, asking for records from the CBC, where the CBC asks that records be redacted under section 68.1, is to go to court. You are talking thousands of dollars to have a judicial review, as opposed to going to the Information Commissioner, which is provided as a complaint mechanism free of charge. I find that condescending.

[Dean Del Mastro, Conservative, Peterborough, ON]

Is there an element of hypocrisy to it, in your view? CBC often reports on access to information. They file access to information requests. They are a news agency within the country that is respected by Canadians. Is there an element of hypocrisy in their not allowing that same critical lens to be applied to them?

[Col Michel W. Drapeau]

I don't know whether you'd say hypocrisy, but it's bifocal. Yes, they have this expertise within, just as most news organizations, from CBC to CTV to Global to Sun Media, all have research departments. Many political parties have them too, and many large corporations have them. By all means, CBC does, and CBC does an excellent job. And they inform us on a daily basis that this information was obtained under access.

So it's not as if they're new in the game or don't know the concept of it and its value as a democratic tool. They know that, but it's almost as if they come across saying “it doesn't apply to us”, because it never did until 2007. That's the difficulty they have with it.

[Dean Del Mastro, Conservative, Peterborough, ON]

Other witnesses have suggested that CBC may in fact may be sitting on this information because they don't want to be embarrassed, and I understand that. Often the information that comes out under access is embarrassing. There's a reason why people are seeking it.

[Col Michel W. Drapeau]

But the act has been interpreted so many times by the court. In one of the many judgments, the court says that embarrassment is not an exemption.