National Defence Committee on Feb. 14th, 2024

[Col (Ret'd) Michel Drapeau]

It is. We have clients at the office basically pulled between the two systems. It doesn't work.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Legislation is needed to clear that up.

[Col (Ret'd) Michel Drapeau]

Yes, but there are other aspects we don't discuss. If a sexual assault victim's case is tried by the military system, she will appear in a court martial. The court martial takes place in the unit lines of the unit the accused belongs to. When she testifies before the public, the public is made up of her colleagues in uniform with whom she will continue to serve for the rest of her career. There is no privacy over what happens and how she acts and reacts to it. You wouldn't want this to happen to anybody.

[The Chair, Liberal, John McKay]

Thank you, Ms. Mathyssen.

Mr. Bezan, you have five minutes.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Chair.

I want to thank our witnesses for joining us today.

I just want to run a through a couple of things here.

Colonel Drapeau, you served, you said, in the corporate office in HQ at the end of your military career. One of my outstanding access to information requests was something as easy as the policy change of “Chapter 205—Allowances For Officers and Non-Commissioned Members” of the “Compensation and Benefits Instructions”. How difficult would that be? I filed this on October 13, 2017.

[Col (Ret'd) Michel Drapeau]

When the office had asked you what time you wanted it....

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

There's no reason that this should never have been handed over.

Mr. Shimooka—

[Col (Ret'd) Michel Drapeau]

It's possible that if this publication you're referring to is public, then access to information wouldn't provide for it.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Our understanding at the time was that it was not public when we asked for it. It may be public now, but they still haven't turned it over. They did acknowledge that it was still outstanding on January 17 of this year, so we're talking six and a half years after the fact.

Mr. Shimooka, you described the information environment around the fighter jet file as unprecedented with gag orders. You also wrote a report on the draft of the Auditor General's third report, “Canada’s Fighter Force—National Defence”. I made an ATIP request to get all the memos, emails, correspondence and briefing notes concerning the AG's report and draft report on Canada's fighter fleet. That was received on March 6, 2019. I still haven't heard an acknowledgement that they still have it and it's still outstanding.

Can you go into detail as to whether you did any ATIPs based on that report, the study you did and ultimately the gag order, and how that impacted your work as a policy analyst?

[Richard Shimooka]

I did not, and I won't go too far in depth on this topic.

I think this area, especially with the gag order—and I'll expand a bit on it—was unprecedented in the sense that most members of the Canadian Forces who operate in these areas already know and have a very good sense of what they can or cannot speak to. We entrust them with highly sensitive technical classified information, and to have a whole policy put on top of them to prevent them from speaking affected how individuals saw their job and their relationship to their position. I think in general, a lot of these individuals have a high level of belief in what they do and the importance of their role, based on their long service careers or their long service within government.

In the specific case of the fighter file and some of the events that occurred surrounding it, which I detail in the report, it was seen as unprecedented. As Colonel Drapeau has discussed several times, members had no ability to go outside of their chain of command. I think that's where you start seeing issues arise with individuals and how they see their positions. In Canada, we just don't have that culture, really, of releases of leaks.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

We have a situation where we already have the Security of Information Act and the National Defence Act. There are different levels of classification and secrecy that members of the Canadian Armed Forces and people at National Defence have to acquire, so why are we using non-disclosure agreements?

I put this to Mr. McSorley and Mr. Drapeau. Are those gag orders? Is it necessary for national security? Doesn't the existing legislation already provide that type of protection and the ability for those we trust with our national security to discern and make those types of decisions on their own?

[The Chair, Liberal, John McKay]

We're down to about 30 seconds.

[Col (Ret'd) Michel Drapeau]

It's pretty much what you said. Members, upon enrolment, swear an oath of loyalty to the Crown and everything else—

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

The NDA is not necessary, then.

[Col (Ret'd) Michel Drapeau]

—with the security clearance.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Mr. McSorley, do you see using NDAs as a gag order?

[Tim McSorley]

That's how it appeared to us. As Colonel Drapeau just said, on top of what you said, there are the oaths they take. There are already so many restrictions on what can be shared that an NDA just seems like a gag order.

[The Chair, Liberal, John McKay]

Thank you, Mr. Bezan.

Mr. Collins, you have five minutes.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Thanks, Mr. Chair.

Welcome to the witnesses.

Mr. Drapeau, for almost a quarter of a century, I worked under the umbrella of the FIPPA legislation in Ontario. One of the biggest complaints there was that it hadn't been updated in decades. The same complaint has been levelled at the federal level. I'm interested in your opinion because you're a frequent flyer with those processes. How often should the information be updated?

[Col (Ret'd) Michel Drapeau]

I don't think it's required. Structurally, the original bill was one of the better pieces of legislation I've seen. Some key aspects, like the 30-day rule and whether or not the Information Commissioner would be subject to a time, can be looked at, but I'd keep the bill as simple and basic as it can be. It is a quasi-constitutional statute, and ordinary people should be familiar with it and able to use it. At your kitchen table, you should able to ask for a request, pay the five dollars and go through with it. I don't think we need to complicate it; we need to simplify it.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

In terms of the frequency of updating it, there are references, I think, in the provincial legislation that talk about CD-ROMs and some outdated—

[Col (Ret'd) Michel Drapeau]

There is normally in the legislation a clause that says it has to be reviewed every five years or so, but I don't think we need to complicate it. The act is now becoming almost cumbersome because of its complexity.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Understood.

There have been many references today to international comparisons with similar acts in other countries. Are there any lessons to be learned from those who are dealing with the same challenges related to access to information and those who are doing it right?

[Col (Ret'd) Michel Drapeau]

I think so. Our act, at least following your deliberations, doesn't work. It doesn't produce the results, on a quasi-constitutional basis, that you expect as a requester. We need to go back to the drawing board and see what needs to be changed—not a wholesale change, but some basic aspects that need to be changed.

I'll come back to the 60 days. That may be a better way to serve the public than 30 days, and not only serve the public but make a goal that is attainable by those in the ATIP office.

[Chad Collins, Liberal, Hamilton East—Stoney Creek, ON]

Sir, you've referenced many times the importance of timely and unfettered access to information. For the entire time that I've been in office at two levels of government, I've see the importance of getting that information out. Open data is very important, but especially these days as we try to find ways to support legacy media. Journalists, of course, have a job to do in holding government to account and providing information to the public to reinforce our democracy and reinforce faith in government. If it's not timely and it's not unfettered....

I find that as technology is changing, more and more people are turning to other sources of information. They're turning to social media, which we know isn't media.

Can I get your thoughts on how important the timeline piece is that you've emphasized many times here today? Why is that so important for ensuring that legacy media has the ability to get information out to the public?