Finance Committee on June 4th, 2015

[Mark Adler, Conservative, York Centre, ON]

Some 50% of the jobs in Canada are with small businesses, and small business accounts for a third of our country's GDP. So you are saying that this provision does provide a benefit to small businesses. Correct?

[Jeffrey Astle]

I believe so, yes.

[Mark Adler, Conservative, York Centre, ON]

Thank you.

Also, in discussion with my colleague, Ms. Bateman, you mentioned that the U.K., Australia, and New Zealand have similar regimes to what we're proposing here. You did indicate that no one jurisdiction can undermine the rights of another jurisdiction.

Could you expand on that because it wasn't quite clear to me? Could you give an example even?

[Jeffrey Astle]

Yes, I can. There have been instances in the United States where, when determining whether communications between advisers and clients should be privileged, they look to the jurisdiction where the communications occurred. If privilege is not extended in that jurisdiction, they will not provide a privilege in their jurisdiction. So if there's no privilege in Canada, we're not going to give it to you in the United States. That's one way to look at it.

Another way to understand the present situation in Canada is to look at situations where privilege was actually given to communications, for example in the United Kingdom, where privilege exists.

In court proceedings in Canada, they will actually strip away that privilege and force the disclosure of the communications that occurred in that foreign jurisdiction. So at least currently there's no judicial comity. It's basically, sorry, if you're going to deal with the Canadian courts, you're going to deal with the Canadian system, and, unfortunately, privilege does not extend to those types of communications at this point in time. This legislation has addressed that gap.

[Mark Adler, Conservative, York Centre, ON]

So this really levels the playing field.

[Jeffrey Astle]

Yes, absolutely. There's work to be done worldwide to continue on this path, and I think Canada has moved forward at an appropriate time to address this.

[Mark Adler, Conservative, York Centre, ON]

Thank you.

Could you speak a bit about that? You mentioned earlier that an international network would be beneficial. Could you talk a bit more about that and what role, if any, Canada could play in possibly helping to move that along?

[Jeffrey Astle]

Sure. If we are a jurisdiction in which these protections are in place, officials in their meetings with organizations or groups of governmental organizations can look to us as a model with respect to how these protections can be used and can help encourage other countries to put similar protections in place. I know discussions occur at the international level, and I think Canada could be at the table in helping to promote the benefits of this and the fact that it's important to have these features in their intellectual property frameworks as well.

[Mark Adler, Conservative, York Centre, ON]

Thank you.

[The Chair, Conservative, James Rajotte]

You can have one final brief question.

[Mark Adler, Conservative, York Centre, ON]

Thank you. I'm okay.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Adler.

I'm going to follow up as the chair on a few points.

Mr. Astle, I want to follow up on what Mr. Adler and Monsieur Côté said. We did receive correspondence from the Law Society of Upper Canada, stating that they oppose this measure, because they don't think the government needs to extend solicitor-client privilege in order to actually accomplish what it wants to accomplish, which is to protect commercial information. So I'd like you to respond to the concern they've raised with us.

[Jeffrey Astle]

There are several dimensions to their concerns.

[The Chair, Conservative, James Rajotte]

I mean their concern that this is actually going too far and that you don't need to go this far to accomplish what you want to accomplish.

[Jeffrey Astle]

I disagree, first of all.

[The Chair, Conservative, James Rajotte]

Why?

[Jeffrey Astle]

I will tell you why I disagree.

The courts have the ability to extend privilege on a case-by-case basis, where the circumstances suggest that it's appropriate. Unfortunately, in Canada, based on, I guess, the evidence before them, the courts have held to date that no privilege should exist in those communications. This is an unfortunate state of the law, but the only way to overcome it at this point in time is to enact legislation to change this to where the bar should be relative to those communications.

In the communications of the associations and the CBA, for example, it's admitted that the type of advice that's being provided is with respect to very important legal instruments and it's important that the communications associated with the advice given in putting those properties in place be protected in the same way as communications in connection with any form of legal advice are.

I hope I've addressed your question.

[The Chair, Conservative, James Rajotte]

I appreciate that.

I next want to move to the RCMP. As you know, the Information Commissioner testified here this week. She actually provided a helpful timeline in terms of the investigation. In my understanding, she raises two main concerns. One is with respect to the timing of the request and then the response, and the other is with respect to the applicability of the Ending the Long-gun Registry Act to her act itself, the Access to Information Act.

I just want to clarify. In your presentation you said the RCMP did not destroy any registration data before the coming into force of the Ending the Long-gun Registry Act on April 5, 2012. Later on you talked about the RCMP providing the requester with a copy of a previous access to information request that met the parameters of his request. Over eight million rolls of registration data would be approximately 171,000 pages long. So is this essentially then a disagreement between you as the RCMP and the person who put the request in? You feel very strongly that you have fulfilled his or her request, but this person feels that they did not get the information or all the information that they should have been provided under the request. Is this essentially, then, a disagreement of that type? Does that characterize it fairly?

[D/Commr Peter Henschel]

Yes, I think that is probably a way of characterizing it.

What I will say is that we had two obligations. One was the obligation under the Access to Information Act to provide information. The other obligation was to meet what was stated in the Ending the Long-gun Registry Act when that came into force, which was to delete the data in the registry.

To ensure that we could meet both of those obligations, even prior to the Ending the Long-gun Registry Act, as we mentioned, we had dealt with at least a couple of dozen requests of a similar nature. As defined by the Firearms Act and the associated regulations, we had identified some 27 fields within the Canadian firearms information system that related to the registration of firearms, which is what we consider to be the registry. Of those, 12 did not include personal information. We made sure we had those 12 before we destroyed the data. After the legislation came into effect, we actually made sure we had the data that was there—those 12 fields—and we had a copy of that information so that we could respond to any access to information requests with the relevant data, but also data that was releasable. That, of course, excluded all the personal information. Those were the 12 of the 27 fields that we maintained in order to be able to be responsive and be in compliance with the two pieces of legislation.

[The Chair, Conservative, James Rajotte]

Okay, I appreciate that.

I have only a couple of minutes left.

I want to get to the disability benefits. We have three individuals here to whom I'd like to pose questions, but perhaps I could just ask one of you. Ms. Benson, you mentioned the $900 million. The Treasury Board describes that as a subset of a contingent liability associated with banked sick days.

My understanding is that the government has to provide some actuarial accounting for all of the unused sick days, some value. It seems to me that the $900 million is.... Obviously, they're hoping to have some agreement whereby they move away from the current system toward one that has a short-term disability plan, as well as a long-term disability plan that they say better provides for employees.

I'm really not quite sure what the concerns are about the $900 million. You can say that you don't want to move to that model, and that's fine. But it seems to me that the $900 million is a logical number, considering the actuarial accounting or valuation of the unused sick days and any savings that the government may hope to get.

Ms. Benson, Ms. Daviau, or Ms. Tremblay, do one of you want to address that?

Ms. Benson.

[Robyn Benson]

Yes, I'll start, and thank you very much for the question.

The $900 million is actually a paper exercise and not real money, so we have a concern about that. We are concerned that the government is telling taxpayers that there is this huge liability and that it's on the backs of taxpayers, when in fact, if we move to this short-term disability plan, there will be a third-party carrier who will be on the backs of the taxpayers because somebody will have to pay for that carrier.

We also are concerned that division 20 reaches into the collective agreement and takes something out of it so there is no negotiation or free collective bargaining, which we have the right to under the charter.

We certainly would entertain discussions with respect to the sick leave, because the government has yet to provide any of us at the bargaining table with an explanation as to what is wrong with it in terms of.... Certainly, in the press there have been discussions about young people or new employees' not having enough sick leave, which has not been discussed yet.

There are three of us sitting here. I might suggest that when I started as a young employee 35 years ago, the sick leave provisions that were there then are there now. There are provisions for managers to manage that particular leave.

We have concerns that when the government says it's booking moneys for a projected surplus, those are actually not moneys. It's not prudent on behalf of all Canadians to do that.

[The Chair, Conservative, James Rajotte]

Thank you.

Unfortunately, my time is up. I have to turn it over.

Mr. Caron, you have the floor, and you have five minutes.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you, Mr. Chair. I am going to share the time I have with my colleagues Mr. Côté and Mr. Dionne Labelle.

I would like to go back to Mr. Henschel and Ms. Marcoux.

The Standing Committee on Finance is discussing legislative changes that are included in Bill C-59, in division 18 in particular. All of the witnesses here want to and may discuss the legislative changes. For your part, you do not want to, or cannot talk about them, and I understand that. You cannot talk about legislative changes that would have a retroactive effect on matters in a case that is currently before the courts. You cannot or do not want to talk about the investigation of the Ontario Provincial Police on this matter.

As to whether all of the files were destroyed, even the Information Commissioner mentioned that she had no proof that they had not been destroyed, aside from Quebec, of course.

I'm sorry for the blunt question, but what is your purpose in coming here? What can you bring us that's related to the bill itself, outside of the fact that in your reply to Mr. Rajotte, you indicated that there is a disagreement in perspective between you and the Information Commissioner regarding compliance with the access to information requests? I'd like to know what you can bring here to the committee for the purpose of discussing Bill C-59?

[D/Commr Peter Henschel]

We were invited to appear here, so we've appeared. We can answer your questions to the best of our ability, but it would be inappropriate, as I said already, for us to comment on legislation. That is not the role of the RCMP. Our role is to apply and comply with the law.

All we can offer is to provide the information we have with respect to an issue that has arisen as a result of the legislation.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you very much.

I am going to yield the floor to Mr. Côté.