Mr. Speaker, I am honoured to participate in this important debate. I want to say at the outset that what we are technically addressing is a motion by the government that would refuse the 19 or 20 amendments to Bill C-58 that were proposed by the Senate. The NDP opposes the motion. It cannot support a bill that does not include the amendments that were brought to this place by the Senate. I will explain why in my remarks.
It is a very disturbing situation we find ourselves in. During the election campaign, the government committed to transparency. Indeed, the Prime Minister, when in opposition, introduced Bill C-613, an act to amend the Parliament of Canada Act and the Access to Information Act. We could call it the transparency bill. Bill C-58, therefore, is not something the Liberals simply decided to propose on a whim. It was the result of a considered effort by the government to deliver on an election promise on transparency.
It was a total disappointment when it came forward. That is not me speaking. It is from the former information commissioner of Canada, Suzanne Legault. Members know, just as I do, how unusual it is for an independent officer of Parliament, such as the Information Commissioner, to give the kind of criticism I would like to read into the record today.
On September 28, 2017, when the bill first came forward, she said that bill would “take people’s right to know backwards rather than forward”, according to the National Post. The article went on:
In her first substantive comments on the legislation, [the former commissioner] said the measures fail to deliver on Liberal election promises. “If passed, it would result in a regression of existing rights.”
She put forward 28 recommendations to improve the legislation, and they are not found, in any significant degree, in Bill C-58. That is why, when I stood in this place during debate on the bill earlier, I reluctantly said, with sadness, that we had to oppose the bill. If the government is not even prepared to take the baby steps represented by the Senate amendments, clearly we cannot afford to pass what even the commissioner so eloquently said was a regressive bill. She is right, for reasons I will come to.
Like the member for Louis-Saint-Laurent, who is justly acclaimed for his awards in the world of journalism, I received an award as well for my work on freedom of information. It was from the hon. Ged Baldwin, who was once the member of Parliament for Peace River, for work I did at graduate school and then with the Canadian Bar Association, so many years ago, lobbying for an access to information act. It was modelled on legislation other countries have taken for granted. The United States has had it since the sixties, Sweden since the 18th century, and so on.
Finally, Canada got an access to information act. However, it is old. It was passed in the eighties. It is from horse-and-buggy days, yet some of those old features have not been corrected in the bill before us.
I care deeply about the issue. I think it is central to a democracy. The Supreme Court of Canada has called the right to know, freedom of information and access to information a “quasi-constitutional right” Canadians have. When the former commissioner says that the bill is regressive and is a step backwards, despite the bold promises of transparency the Prime Minister made when he was leader of the third party in the House, we can imagine the disappointment of Canadians.
Of course, it is not only this Canadian who has that disappointment. I should point out that Canadian Journalists for Free Expression and the Centre for Law and Democracy called the bill “inadequate” and asked that the government withdraw it.
The Senate has brought forward improvements, and for the government to say it cannot even go there is frankly shocking.
What is wrong with the bill? I do not quite know where to start. One thing it gets right, I concede, is that for the first time, there is an order-making power for the commissioner.
Just to step back, what should an access to information act contain? It should contain three things.
First, it should contain a general statement that the public has a right to government records.
Second, it should have obvious exceptions to that rule. We can all guess what they are. They are all included in this legislation, and then some. They include cabinet confidences, business information, policy advice, solicitor-client records and information that if disclosed would be injurious to national security or international relations. There are the rules, and there are exceptions.
Third, there should be an independent umpire in the game. Until this bill goes through, that umpire, the Information Commissioner, has only been able to make recommendations, which the government has frequently ignored. Now there would be something like an order that could be made and enforced in the Federal Court. That is something I believe is worth support. I also support that there would be a legislative review of these provisions within five years. I think that is good.
I talked about Liberal promises. One thing the Liberals talked about constantly in the last election was that the bill would be extended to the Prime Minister's Office and ministers' offices. Those records would be available. They are available in provincial laws. They are certainly available in my province of British Columbia. That was a black and white election promise that has now been broken by the current government. There is no way to sugar-coat that.
The Senate amendments would improve it and give it a bit more teeth, but that is simply not on in terms of this legislation. I am grateful to the Senate for the 20 amendments that would, if passed, allow us to begrudgingly accept the improvements in this bill. However, the government has now put us on notice that it does not want to go anywhere near them. It likes the bill the way it is, despite the fact that it was castigated by everyone who knows about access to information in Canada. The academics and journalists who studied it and the advocates out there who use it as a tool to hold their government to account all said that it is not going to work and that it is just not enough. That was sad to me.
In opposition, the Prime Minister said, “a country's access to information system is at the heart of open government.”
I talked about transparency. The Liberals seemed to like it in opposition. The Prime Minister said during the campaign, “transparent government is good government.” That was something he said during the campaign.
Let us get more specific. He said:
We will...ensure that Access to Information applies to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.
Unfortunately, that did not happen in this legislation.
What the government likes to talk about is what it calls proactive disclosure, which is a good thing. That is when a minister travels and puts his or her expenses on the website so Canadians can see whether there has been abuse. That is done proactively. If one goes to the website, there it is. Frankly, it is old hat in Canada. It has been around for decades in the provinces. However, as much as I like that, the fact is that it is not what people want. If they want to apply to that minister's office to understand about a particular contract or something for which the minister is responsible, they cannot get anywhere with it, because the ministers' offices are not subject to the law. It is a bizarre aberration.
I had the good fortune of being the unpaid adviser to the attorney general when B.C.'s freedom of information act was brought forward. I can say that we did a lot of consultation. I think there were 52 amendments made on the floor. The bill was passed unanimously and was praised as the best bill in the Commonwealth when it came forward. Unfortunately, it needs more work. I hope it is amended, like this bill. Nevertheless, it was the gold standard at the time. There was never any question about ministers' offices not being covered.
The government has what is called in the trade a “Mack truck clause”. It was not changed. It is the clause that was section 69 in the original bill, the cabinet confidences Mack truck clause. What does that mean? Rather than just being an exemption, an exception to the rule, of which I spoke earlier, the act does not even apply to it. What does that mean? It means that we cannot have the commissioner's office or anyone else deciding whether stuff has been stuffed into a cabinet record to evade the law on the right people have to access information. It is called a “Mack truck clause”, or often, “cabinet laundering”. That means that the government sticks a record in the cabinet. I am not saying that this happened. I am not suggesting bad faith, but it is certainly possible under the law. That is why it was so criticized during the day.
What else does the Senate do that the government will not go near? We have heard a lot about Mark Norman today. The Senate would add a clause that would create a new offence forbidding the use of any “code, moniker or contrived word or phrase in a record in place of the name of any person, corporation, entity, third party or organization” with a view to evading the duty to disclose and release records under the act.
We all know why that is there, because it is notorious that to evade the law on access to information, the Department of National Defence did not even use the name of Mark Norman or his rank. It used a phony word, contrary to the spirit of the act and certainly the letter of the act. This would make it clear that this could not be done in the future, which seems to be good public policy.
It seems to me obvious that if the government intends to evade the letter and spirit of the act, as this government has done, we would want to correct that misbehaviour. The Senate saw through that, proposed amendments and brought them here, and the government has not even allowed us to talk about them. We are going to just put them all aside. That is quite disturbing. It is not a theoretical problem, in other words. It is a real problem that the Senate wanted to address, because we got wind of it in the litigation involving Mark Norman. The government will not fix it. It does not even want to go there.
There are some other changes that are technical in nature, but the big principle is that the bill, after so many years of ossification, is rusting out. The bill came forward before we even had computers, and now the government is doing tinkering and patting itself on the back for doing what in other jurisdictions has been the law for a generation.
I am hard pressed to find things to say about the bill that are positive. I appreciate the fact that there would be a five-year review and that, as I said earlier, finally, in keeping with all the provinces' laws, the order-making power would be available to the commissioner. That is pretty thin gruel after all these years. Nevertheless, it has to be acknowledged as a positive change. However, on balance, the bill is very, very disturbing.
I wish I could be here saying that the bill has merit. I wish I could be saying that there were some of those things I talked about, like cabinet confidences being a regular exception for which courts and others would have the theoretical ability to review disclosure decisions, but there is nothing here that would do that.
There is another issue. That is the duty to document. One of the modern issues that has come forward is that to evade the public's right to know, there is a great oral tradition that seems to have emerged. Things are not written down in government documents. Either little yellow stickies are put on them, which are removed when disclosure applications are made, or, more frequently, a record is not made at all. We have seen that in British Columbia, the development of the so-called oral culture of government.
The notion of documenting and having a duty to record for future generations and others just exactly what decision was made and for what reasons is lacking. In administrative law, there has been a growing commitment, the courts have found, to provide reasons for decisions that are made. Sometimes access to information has been a tool to elucidate the reasons a particular decision was made, so people have been calling for a duty to document. There is no such thing in this law, I am sad to say.
In conclusion, the government has taken off the table all the work the Senate did that would have made it possible to support this bill. The Senate amendments made it better, said Caroline Maynard, the Information Commissioner of Canada. Had those amendments gone through, the New Democratic Party would have supported this bill.
To take all those amendments off the table and leave what has been soundly criticized, in all quarters, by academics, user groups and journalist groups, and say that we should be happy with what is remaining is simply an outrage. We cannot dignify this with our support.