Privilege March 27th, 2013

Mr. Speaker, it is really an honour for me to add a couple of comments in support of the member for Langley, who yesterday alleged that his parliamentary privilege had been breached.

Members will appreciate that this is a unique situation and an important point of privilege, and that it deals with the collective rights of all members of the House. The member for Langley alleges that his parliamentary privilege was affected in that on March 21, he was denied what was his expected and promised slot to deliver an S. O. 31, also known as a member's statement. The reason he states that his promised slot was removed was that the topic “was not approved”.

I am troubled by this turn of events, and I and most members believe that it is larger than what might have been the subject matter of that S. O. 31. I suggest that all members of the House should be troubled by the turn of events last Thursday. S. O. 31 reads as follows:

A Member may be recognized, under the provisions of Standing Order 30(5), to make a statement for not more than one minute. The Speaker may order a Member to resume his or her seat if, in the opinion of the Speaker, improper use is made of this Standing Order.

According to the rule, it is clear that the Speaker, and only the Speaker, can order a member to resume his or her seat if the member's statement is over one minute or is improper for some other reason. Denying an S. O. 31, according to the words of the Standing Order, is the exclusive prerogative of the Speaker. No other member of the House has the authority, delegated or otherwise, to deny a private member the opportunity to make a member's statement.

When members' statements were first introduced in S. O. 31 in 1983, then Speaker Sauvé stated on January 12, 1983, that this period was intended to provide members with an opportunity “to voice serious issues of international, national or local concern”. Although the S. O. 31 came into force in 1982, its genesis is in a rule that existed in the House from Confederation until approximately 1940. The practice was that members could seek unanimous consent of the House to move a motion without notice. Unanimous consent was almost always given and was so routinely given that the House had to eventually restrict it to matters of “urgent and pressing necessity”.

However, the matters of urgent and pressing necessity prerequisite was so routinely ignored and so many members were rising, that more formal rules were considered and adopted. Therefore in 1982, a special procedure committee concluded that the former practice requiring unanimous consent was used for purposes for which it was never intended. They opted for a new Standing Order that would become Standing Order 31, which would enable members to make statements on current issues on a daily basis during the first 15 minutes of the sitting.

Previous Speakers have been guided by a number of well-defined prohibitions. On January 17, 1983, when introducing statements by members, then Speaker Sauvé stated that members may speak on any matter of concern, and not necessarily on urgent matters only. As well, personal attacks are not permitted and congratulatory messages, recitations of poetry and frivolous matters are all out of order. Marleau and Montpetit state at 363 that these guidelines are still in place today, although Speakers tend to turn a blind eye to the latter restrictions.

Therefore, nowhere in the Standing Orders or in the enunciated guidelines do the members' statements need to be vetted by any other member or committee of members. Since 1983, additional restrictions have been placed on members' statements by the previous occupants of your chair. Subsequent Speakers have ordered members to retake their seats when offensive language has been used, when a Senator has been attacked, when the actions of the Senate have been criticized, when a ruling of a court has been criticized and if the character of a judge has been attacked.

It is true that certain practices and customs have evolved to provide some order and predictability to the 15 minutes prior to question period. It is also true that it is written in the commentary:

In according Members the opportunity to participate in this period, the Chair is guided by lists provided by the Whips of the various parties and attempts to recognize those Members supporting the government and those Members in opposition on an equitable basis.

However, the Speaker retains discretion over the acceptability of each statement and has the authority to order a member to resume his or her seat if improper use is being made of these Standing Orders.

I have a couple of observations regarding the Chair being guided by lists provided by the whips of the various parties.

First, it is the Speaker who has the discretion to deem a member's statement unacceptable. Nothing in the rules allows this discretion to be delegated, and there is no suggestion that the Speaker has delegated the authority to any other member of Parliament.

Second, the wording in the usage is “guided by”, not “bound by”, so I would submit it is permissive, not mandatory. Therefore, while the Speaker may be guided by lists provided by the various whips, the Speaker is in no way bound by these lists.

I can see that these lists are certainly convenient for the Chair in providing an orderly introduction of the 15 members who will be presenting S. O. 31s on any given day, but nothing in the Standing Orders or in practice authorizes the whip to choose the 15 speakers.

Moreover, it is submitted that convenience for the Chair through providing an orderly rotation so that when one member sits, the next one stands can violate neither the letter nor the spirit of the standing order.

For these reasons, I support the member for Langley in his case that his parliamentary privilege has been compromised by having to submit his proposed member's statement for vetting. This is a process that is not contemplated by the standing order and would appear to be completely contrary to the stated purpose of the member's statement, which is to allow members to address the House for up to one minute on virtually any matter of international, national, provincial or local concern.

We do not know if the rejected statement from the member for Langley would have fitted into one of those broad categories. Since he was not allowed to deliver it, we will never know. That is a violation of not only the member's right to deliver a statement but also of the right of this House to hear his statement.

Accordingly, I would ask that under the circumstances you find a prima facie case of breach of privilege with respect to the member for Langley.

In a Parliament where the government and the opposition control such a large portion of the parliamentary calendar and agenda, private members' bills, motions and S. O. 31s are the very few mechanisms that members have to bring forward matters of importance for their constituents.

I would submit that if the House does not jealously protect the rights of members to bring forward matters of concern to their constituents and if it does not strictly enforce those rules, the roles of the private member, Parliament and ultimately democracy have all been equally compromised.

CBC and Public Service Disclosure and Transparency Act March 26th, 2013

Mr. Speaker, I thank all hon. members from all sides of the House who have participated in the debate regarding private member's Bill C-461.

Let me start by dispelling some of the concerns from my friends from the New Democratic Party. This bill is not an attack on the CBC. I wish they would assess the statute on its face rather than developing conspiracy theories as to why we are promoting it.

Section 68.1 of the current Access to Information Act has been determined by two courts, including the Federal Court of Appeal, to be unworkable. It creates an exclusion and then an exemption to that exclusion, which is a recipe for controversy. It led to expensive litigation and ultimately the Federal Court of Appeal and the federal trial court agreeing with the Information Commissioner that the Information Commissioner must be able to see the documents in order to determine whether disclosure is appropriate.

I listened intently to my friend from Halifax, who did actually read the bill before she spoke. She was curious as to why an exclusion is not the best way to protect the independent broadcaster. The reason is quite clear. It is section 36 of the Access to Information Act that sets out the powers of the Information Commissioner, and they are broad. She may summon and enforce the appearance of persons. She may receive affidavits, take evidence on oath, and she can compel the production of documents. More than difficult, it is borderline impossible to create an exclusion that could coexist with the broad powers of the Information Commissioner that are set out in section 36.

What is the way to balance the rights and needs of an independent public broadcaster and the law that says the Information Commissioner ought to be the one to arbitrate disputes? It is the prejudice test. I did not make up the prejudice test. The prejudice test was cited by the Information Commissioner before the access and ethics committee when she testified at its study on section 68.1. Section 68.1 is so flawed that a standing committee of Parliament did an entire study on it. The Information Commissioner recommended a prejudice test, such that if it can be shown that release of the documents would be injurious to a party's independence then disclosure is inappropriate.

It was interesting to hear the comments from the member for Winnipeg Centre. He talked about what cabinet would think about this bill if it came to committee. Then we heard from the Parliamentary Secretary to the Minister of Justice that the government was going to propose amendments to the bill. They do not want to disclose the salaries of DMs 1, 2, 3 and 4 or the comparable salaries of any other government appointments. If I were a member of the opposition, I would think very seriously as to why the government was going to propose amendments to this bill to exclude all income levels under and less than the DM 4 level.

With respect to this bill, my friend from New Brunswick had the most sage speech. As many members know, he was the former director of the Canadian Taxpayers Federation and understands very well that the concepts of transparency and openness are fundamental to democracy. We in this chamber are members of Parliament. Our job is to hold the government to account; that is, the departments, the agencies and the crown corporations. We cannot hold government to account when government institutions withhold information from us or from other agencies or from other Canadians who are requesting it. Knowledge is power and the only way we can get knowledge is if we have access to the information.

Lastly, this is far from an attack on the Canadian Broadcasting Corporation. The salary disclosure requirements of this bill are to be applied in the entire federal public service. CBC is in no way being singled out. Transparency is not the enemy of a public institution, far from it. Transparency leads to trust. There is trust that there is proper stewardship over public resources. The people at CBC should want to disclose. They should want this legislation so that Canadians can once again have the trust that they are the proper stewards over public resources.

I encourage all members to support Bill C-461, and in an unamended form, when it goes to committee.

Canadian Broadcasting Corporation March 5th, 2013

Mr. Speaker, private member's bill, Bill C-461, the CBC and public service disclosure and transparency act, would correct a well-documented deficiency in the Access to Information Act, which allows the CBC to refuse to disclose documents if, in its discretion, it believes the documents affect its creative, journalistic or programming activities. This blanket exclusion would be replaced with a discretionary injury-based exemption.

The bill would also amend the definition of “exempt personal information” in the Privacy Act to allow specific salary and responsibility access requests for the senior levels of the federal service.

However, there is much misunderstanding and confusion regarding this bill. Some opposition members have called the bill an attack on the CBC. It is not. CBC is in no way being singled out. In fact, the prejudice test would provide enhanced protection to recognize the unique position a public broadcaster is in vis-à-vis the state.

Transparency and sunlight are fundamental to open democracy and indispensable in holding government to account, so I encourage all hon. members to support this private member's bill, unamended, at all stages.

CBC and Public Service Disclosure and Transparency Act February 12th, 2013

Mr. Speaker, the member will know, as he sat on that committee, that when the Information Commissioner appeared at committee she referred to international models, specifically how the United Kingdom deals with disclosure pursuant to the British Broadcasting Corporation. That is how she came up with the concept of the prejudice test, which I think will work quite well.

CBC and Public Service Disclosure and Transparency Act February 12th, 2013

Mr. Speaker, as the member knows, the Information Commissioner appeared before the ethics committee and advocated on behalf of a prejudice test, almost word for word as the legislation before the House indeed contemplates. However, the member is quite right in that there is no way to absolutely guarantee that a piece of legislation will be judgment-proof or litigation-proof.

Thankfully, we do have the courts that can review decisions of government if they feel those decisions are wrong. However, if this is the member's concern, I would suggest that if the prejudice test is properly applied by the Information Commissioner, the chances of having a decision overturned are very remote and, in fact, probably non-existent, although nothing prevents someone from taking that to the Federal Court

CBC and Public Service Disclosure and Transparency Act February 12th, 2013

Mr. Speaker, I thank the member for the question, but he should read the Information Commissioner's report card a little more carefully. The A was given for timeliness and that only. She did not give the CBC an A for the breadth of its transparency or what it had disclosed. Admittedly, the CBC is now quicker in its response time, but that is a much different category of disclosure than the breadth of disclosure.

CBC and Public Service Disclosure and Transparency Act February 12th, 2013

moved that Bill C-461, An Act to amend the Access to Information Act and the Privacy Act (disclosure of information), be read the second time and referred to a committee.

Mr. Speaker, it is indeed a pleasure to rise and speak to second reading of Bill C-461, An Act to amend the Access to Information Act and the Privacy Act for public disclosure. The bill's short title is the CBC and public service disclosure and transparency act.

The bill has two purposes. The first is to correct a recognized deficiency in the current section 68.1 of the Access to Information Act, which currently reads:

This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

Not surprisingly, the CBC took the position that it had an absolute exclusion with respect to its journalistic, creative and programming activities, even so far as the Information Commissioner and her investigative powers were concerned.

The Information Commissioner disagreed, stating that the access act allows her to examine any documents under request to determine if the exception applies.

However, as the CBC denied her certain documents, the Federal Court was called upon to make a determination. Both the Federal Court and the Federal Court of Appeal sided with the Information Commissioner. The appellate court referred to section 68.1 as, “not a model of clarity”, because it created an exclusion and then an exception to that exclusion, which, in its words, creates “a recipe for controversy”.

Meanwhile, the House of Commons Standing Committee on Access, Privacy and Ethics held a study on section 68.1 and recommended that it be amended to avoid any such future controversies. Therefore, Bill C-461 attempts to provide clarity to the issue of the CBC's access and disclosure obligations by replacing the aforementioned blanket exclusion with a discretionary exemption. It further adds an injury or prejudice test, which must be satisfied in order for the exemption to apply, and reaffirms the Information Commissioner's absolute right to examine the documents in order to adjudicate disputes.

Accordingly, the bill proposes that section 68.1 of the access act be replaced with the following, 18.2, which states:

The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act if the disclos2ould reasonably be expected to prejudice the Corporation’s journalistic, creative or programming independence.

The word “independence” was deliberately chosen and replaces the current word “activities”, first because it is narrower, but more to the point, because it is the independence of the public broadcaster that must be protected and therefore exempted from access requests, not all documents merely relating to its activities.

Some will no doubt argue that the bill is an attack on the CBC. That is not so. I am a fan of much of what the CBC does. It is Tuesday night, and I rarely miss The Rick Mercer Report or This Hour Has 22 Minutes. I never miss Hockey Night in Canada, at least not when the Oilers are playing. Power & Politics and radio's The House are often on my TV and radio respectively.

This legislation is not about the CBC so much as it is about transparency and accountability. Section 68.1 of the Access to Information Act was flawed. The Federal Court of Appeal said so. It was flawed, misunderstood and litigated. This legislation attempts to remedy these defects.

Some may suggest that the bill fails to properly recognize the unique position a public broadcaster is in. That is not so. I clearly appreciate and respect that a public broadcaster, especially as a journalistic entity, must enjoy a degree of independence from government.

However, and this is important, the Information Commissioner is not part of government. The Information Commissioner is an officer of Parliament. Similar to our collective role in this chamber, the Information Commissioner plays an important role in holding the government to account.

Moreover, the prejudice test, which is established under proposed section 18.2, recognizes this unique relationship between a public broadcaster, Parliament and government by providing a discretionary exemption when it is established that disclosure will result in prejudice to the CBC's independence. In any situation where disclosure would result in prejudice to the CBC, disclosure would be inappropriate. I submit that the prejudice test is a built-in protection not enjoyed by most government institutions, and this extra protection reflects an understanding of CBC's unique position as a public broadcaster.

Some may, and I expect will, argue that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained. Not so. I agree that confidential journalistic sources must be protected, but I dispute that an exclusion is either appropriate or practicable.

First, the Information Commissioner has unlimited power under section 36(1) of the Access to Information Act, to compel production of “such documents and things as the [Information] Commissioner deems requisite to the full investigation and consideration of the complaint”. I am simply skeptical that an exclusion can be drafted that can coexist with the Information Commissioner's unfettered powers to compel documentation production under section 36.

Moreover, journalistic source privilege is not absolute. The Supreme Court of Canada has said so as recently as 2010 in R. v. National Post. It is not a class privilege; it is fact specific and therefore must be examined on a case by case basis. Who is to determine if the four-pronged test developed by esteemed Professor Wigmore is satisfied, if the CBC is granted an absolute exclusion? The obvious answer is “nobody”.

Is CBC to be made both judge and party in access to information requests? Certainly not. Disputes must be arbitrated by an independent watchdog and the federal court has said, “disclosing records to the Commissioner does not amount to revealing them”.

This bill would contain parallel amendments to the Privacy Act to import the prejudice tests when individuals request documents about themselves pursuant to Canada's privacy statute.

However, the CBC and public service disclosure and transparency act would make a more substantive alteration to the Privacy Act. It would move the words “range of” before the word “salary” in the definition of exempt personal information for the highest wage earners in the federal public service. Currently, under Canada's privacy laws, only the range of salary can be disclosed pursuant to access requests, which I submit is adequate for most income levels. However, at the highest income levels, the increments become increasingly large as to become meaningless. For example, I have been advised that the current CEO of the CBC earns in the range of $363,800 to $428,000. According to my math, that range of $64,200 is larger than many taxpayers' complete salaries and arguably therefore is not meaningful disclosure.

Accordingly, if Bill C-461 is adopted, the specific salaries and responsibilities of upper management, which this bill would define as “DM 1 and higher”, would be subject to access to information requests. This is important. This change would apply to the entire federal public service. CBC would in no way be singled out. Moreover, reimbursed expenses to all federal employees would also become subject to access requests.

I have consulted widely during the drafting phase of this proposed legislation. I believe, and I believe Canadians believe, that they are entitled to meaningful access to how the Government of Canada spends dollars and how the government operates generally. However, Canadians, including federal employees, are also entitled to a reasonable expectation of privacy. Balancing these competing objectives is indeed a challenge and precarious.

However, it is submitted that an injury base test achieves that balance at least as well as that balance can be achieved regarding CBC's disclosure obligations, as it requires a public interest analysis. The question becomes this. Is the public interest in disclosure greater than any consequential harm? Limiting specific salary disclosures to upper management recognizes the privacy rights of the rank and file public servants.

Taxpayers rightfully are entitled to know how their tax dollars are being spent. In that regard, many provinces have established the so-called sunshine lists, which are publicly disclosed lists shining the sun on salaries, perks and benefits paid to government executives, directors and managers. Members may know that Ontario led the way with respect to such financial disclosure. The Ontario government introduced legislation in 1996 mandating the publication of names and salaries of all of its employees and officers who earn more than $100,000 per year.

The purpose of the Ontario law is to provide a more open and accountable system of government. Disclosure allows taxpayers to compare the performance of an organization to the compensation given to its senior people running it. It allows taxpayers to know how their tax dollars are spent.

British Columbia, Manitoba and Nova Scotia have all copied aspects of the Ontario legislation, with reporting requirements varying and going as low as employees earning $50,000 in the case of Manitoba.

My bill does not call for a website, but by mandating or at least allowing disclosure pursuant to access requests, the public will serve as a critical check on government expenditures and an effective deterrent to any government official tempted to treat taxpayers disrespectfully.

This approach, I would submit, is consistent with the purpose of the access legislation generally, as enumerated in the act, that there is a right of access generally to records under the control of a government institution, and that necessary exceptions should be limited and should be specific, and that decisions on the disclosure of the government information should be reviewed independently of government.

As an officer of Parliament, the Information Commissioner is independent of government and therefore in the best position to resolve the inevitable disputes regarding access to government information.

Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, according to academics and according to the Information Commissioner, we are becoming laggards. Internationally, Canada is currently ranked 55th out of 93 countries in terms of our access and our openness.

Moreover, the Centre for Law and Democracy says the federal government is falling behind the provinces and ranking behind those provinces in terms of openness and transparency.

As we have seen, Ontario is arguably leading the way with the most comprehensive sunshine list. British Columbia, Saskatchewan, Manitoba and Nova Scotia are all following suit and have implemented some variation of salary disclosure.

Sadly, and this should be of concern to this chamber, the federal jurisdiction is falling behind. Since its inception 30 years ago, there has been only marginal expansion of Canada's access law. In December 2003, the then-prime minister announced a new policy on the mandating of publication of travel and hospitality expenses for selected government officials. Then in March 2004, the then-government announced a new policy on the mandated publication, on a website, of contracts over $10,000. In my view, sadly, very little has happened since then.

Accordingly, the Information Commissioner—and I heard her on CBC Radio; I was listening to her on Sunday morning—observes a lack of commitment to openness and transparency at the federal level. Bill C-461, the CBC and public service disclosure and transparency act, is an initiative by Parliament to remedy this trend. The spirit of the act is based upon the principle of disclosure. Non-disclosure must be the exception. Bill C-461 clearly promotes this principle.

The CBC and public service disclosure and transparency act promotes open and transparent government and its role in holding government to account. Exclusion to government information prevents Canadians from holding their government to account. I believe, and I hope all members believe, that holding government to account is fundamental to democracy.

Although freedom to know is not a charter-protected right, freedom to know is inextricably linked to freedom of thought and expression and freedom of the press. Knowledge is power, and holding the government to account demands that knowledge and information be shared. Holding to account leads to the establishment of trust, trust that there is proper stewardship of public resources.

Opaqueness leads to mistrust. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will be so regarded. As U.S. Supreme Court Judge Louis Brandeis said, sunlight is the best disinfectant.

Canadians deserve to have light shone on government information. Accordingly, I encourage all hon. members to support Bill C-461, the CBC and public service disclosure and transparency act, without amendment.

Enhancing Royal Canadian Mounted Police Accountability Act February 11th, 2013

Mr. Speaker, listening to the hon. member's speech, I was perplexed by his suggestion that the solution to the problems at the RCMP could be solved with front-end training. I do not mean to diminish the value of front-end training or harassment training, but I am concerned that the effects of that would takes years, if not decades, to have any palpable effect, as new recruits were trained and ultimately found their way into management positions.

Does the member not agree with the commissioner, who believes that this bill would help build a culture of management that is effective at the RCMP and that would be a more effective and certainly a more expeditious solution to some of the problems at the RCMP?

Access to Information November 6th, 2012

Mr. Speaker, yesterday I tabled Bill C-461, CBC and public service disclosure and transparency act.

If passed, the statute would amend the Access to Information Act and the Privacy Act to remove a deficiency that allowed the CBC to deny access requests if it affected its journalistic, creative or programming activities. My bill replaces this blanket exception with a discretionary exemption based on an injurious test. For the exemption to apply, the Information Commissioner would have to be satisfied that disclosure would result in injury to the CBC.

In litigation between the CBC and the Information Commissioner, the Federal Court of Appeal referred to the existing provisions as “not a model of clarity”. The Standing Committee on Access to Information, Privacy and Ethics recommended in March of this year that section 68.1 of the Access to Information Act be amended to remove the blanket exception and to provide clarity with respect to CBC disclosure.

This bill is in accordance with that committee's report and the Federal Court judgments. Accordingly, I encourage all hon. members to support the CBC and public service disclosure and transparency act.