Bill C-58 (Historical)

An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

This enactment amends the Access to Information Act to, among other things,
(a) authorize the head of a government institution, with the approval of the Information Commissioner, to decline to act on a request for access to a record for various reasons;
(b) authorize the Information Commissioner to refuse to investigate or cease to investigate a complaint that is, in the Commissioner’s opinion, trivial, frivolous or vexatious or made in bad faith;
(c) clarify the powers of the Information Commissioner and the Privacy Commissioner to examine documents containing information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege in the course of their investigations and clarify that the disclosure by the head of a government institution to either of those Commissioners of such documents does not constitute a waiver of those privileges or that professional secrecy;
(d) authorize the Information Commissioner to make orders for the release of records or with respect to other matters relating to requesting or obtaining records and to publish any reports that he or she makes, including those that contain any orders he or she makes, and give parties the right to apply to the Federal Court for a review of the matter;
(e) create a new Part providing for the proactive publication of information or materials related to the Senate, the House of Commons, parliamentary entities, ministers’ offices, government institutions and institutions that support superior courts;
(f) require the designated Minister to undertake a review of the Act within one year after the day on which this enactment receives royal assent and every five years afterward;
(g) authorize government institutions to provide to other government institutions services related to requests for access to records; and
(h) expand the Governor in Council’s power to amend Schedule I to the Act and to retroactively validate amendments to that schedule.
It amends the Privacy Act to, among other things,
(a) create a new exception to the definition of “personal information” with respect to certain information regarding an individual who is a ministerial adviser or a member of a ministerial staff;
(b) authorize government institutions to provide to other government institutions services related to requests for personal information; and
(c) expand the Governor in Council’s power to amend the schedule to the Act and to retroactively validate amendments to that schedule.
It also makes consequential amendments to the Canada Evidence Act and the Personal Information Protection and Electronic Documents Act.

Third Reading

[An hon. member]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, say the Liberals. Oh, my, what delusional sense of history do the Liberals have? That only came to light because Mr. Leblanc from The Globe and Mail dug and dug into government information. He used a part of the Access to Information Act and asked for the documents between this date to that date from a certain department. Under Bill C-58, that would not be allowed anymore. Who told us that? The Information Commissioner told us that. She said that if the same request had come in after this bill becomes law, we would have never learned about the whole sponsorship scandal. We would have never learned that Liberals in that part of the country were padding their pockets with public money. People went to jail over this, a government fell over this, as it should have, because it was stealing. It was stealing money under the guise of some sponsorship program, and it was only because of access to information that we found this out.

The residential school survivors have been fighting with government for decades for the simple acknowledgement that they or their parents attended a certain residential school at which they were abused horrifically, and for which the Government of Canada was dragged, finally, to apologize for. That only came to light because of access to information. Government does not disclose these things. The Liberals say that they are going to self-disclose and that should be good. We heard from the Information Commissioner's office that complaints have been rising since its new disclosure policy.

We have also heard from the Information Commissioner's office that with these terms, if a request is deemed vexatious by the government, it can deny the request. What does that mean? It is vexatious to whom, to some department that has been badly handling public funds? Yes, I bet that information would look vexatious. The government is going to tell Canadians it is sorry, they cannot have the information they requested because it thinks it is vexatious. It is going to hurt its feelings, and someone might get fired for doing bad. We want to be able to shine light on these things, not go in the opposite direction.

The Information Commissioner asked for order-making powers, and the Liberals promised this. The Information Commissioner would have the ability to demand documents from government and not have government delay and deny. With the amendments in this bill, the commissioner was asked how this would affect order-making power. She said it would not be a true order-making power, and may in fact delay the process for Canadians even longer because they will end up in the courts more often.

Lastly, we asked the Information Commissioner, the watchdog, an officer of Parliament who works on behalf of all of us, if the government consulted with her and if it offered more in the way of a budget, because enforcing this is going to cost a lot more money due to going to court a lot more often. The answer was no.

Again, the Liberals are talking about how they like to consult, how they like to include, how they like to be collaborative. With every proposal we made to change this bill, to try to save this bill from itself, to help Liberals keep a Liberal promise, one of the hardest things to do in politics, they rejected every single one. They allowed the technical amendments from their side and changed a comma here and moved a period there. Congratulations.

However, the fundamental DNA of this bill is designed to make access to information more difficult for Canadians. That is not me talking, that is the Information Commissioner, aboriginal groups, and advocates across the political spectrum who say that things will get worse under this law.

This is the sense of entitlement. This is a hypocritical approach to politics that discourages Canadians so fundamentally. If Liberals are sincere about working with the opposition, they would amend the bill based on the evidence we heard, rather than their own world view, which will make it so much more difficult for Canadians to hold truth to power.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, quite frankly, the member is wrong. Things will not get worse. In fact, in a year from now, I suspect that the member across the way will regret many of the things he has said.

Let me give a specific example. The NDP has always fought proactive disclosure. That member in particular was one of the members who led the fight against proactive disclosure for members of Parliament. Now, today, in this legislation, we have proactive disclosure, including the release of ministerial mandate letters. The member across the way mocks that. What does a ministerial mandate letter do? It tells Canadians about the priorities of different departments.

What we hear from the New Democrats is, “Well, who cares about that?” Let me suggest to the member opposite that Canadians care. They genuinely care about what the Prime Minister establishes for priorities within the many different departments. Only the New Democrats would fight against proactive disclosure. Only the New Democrats would fight against having ministerial mandate letters made public.

My question for the members is, does he believe that Stephen Harper should have had his ministerial mandate letters made public, or does he believe in the old system where there was less transparency and less accountability?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, I was asked by a colleague if that was a speech or a yelling contest. I think my friend is participating in a yelling contest. At that, he could win; we have no doubt. I am going to grant him that. He can yell louder and longer than most people I have ever met.

With regard to ministerial mandate letters and bringing in electoral reform, where did that go? “We will return home delivery by the post office to Canadians.” That was in a mandate letter. It helped that it was public, and then they broke it, I suppose.

This is serious. My friend looks to make light of it, but this is serious. My friend says, “So what if we're making access to information harder according to the Information Commissioner? So what if first nations are going to have to struggle even harder than they have to gain access?” That is why, today, the Assembly of First Nations, a group to whom the Liberals swear such promise and fealty, are looking at an emergency resolution to reject this bill. It does not matter much to the member, as he smiles so nicely.

The Liberals have a problem. They do not actually want to have access to information. They do not want to tell us what the finance minister owns in his numbered companies. They do not want to tell us when and where they sell shares. The Liberals do not actually want it, but they want to pretend at it. They have all the words, but I fear that Canadians—

[An hon. member]

It is a conspiracy.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

No conspiracy. This is in legislation. This is in the bill that the Liberals just introduced. The Prime Minister and Liberals say they would like to give less access to information to Canadians, and Canadians will learn the experience of trying to access information that belongs to them in the first place.

I think the parliamentary secretary might regret some of the words he has uttered today.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, I am profoundly disappointed that my colleague ran out of time. I would like to ask him, is there anything else he would like to say?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, that is one of the best questions I have ever had. I do not even know where to start.

Let me add this, because I do not think we got to it. With regard to the notion of vexatious and bad faith, who determines it? The department holding the information gets to determine if a request coming from a Canadian is in bad faith. The department can deem that a request asking for information from its department is in bad faith or vexatious. It is not defined in the law. No, it is interpreted by the government that is holding the information.

On normal day-to-day information, this is not going to be a serious issue. However, when it is sensitive information, embarrassing information, information that the government does not want out, all it has to do is take out a big stamp in the department and slam down “vexatious” or “bad faith”, and then it is rejected.

The only power that the Information Commissioner has is to take the whole thing to court if Canadians complain. The government is already applying this bill, even though it has not passed Parliament. The Information Commissioner's office is already filing complaints on behalf of Canadians because they are not getting information already, and the bill has not passed. Let us imagine when this bill becomes law, which the Liberals, by the way and ironically, have shut down debate on.

There is no truer sense of irony from the Liberals that they are closing off, suffocating debate in Parliament—more than Stephen Harper did—on a bill that is talking about the need to provide access to information to Canadians. My goodness, the hubris on that side. When Canadians hear these stories and they go through the experience, time will tell for the government. It is breaking its solemn word to Canadians.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, it is a pleasure to follow my impassioned colleague from Skeena—Bulkley Valley. I wish I had the same level of anger. I should, but today I really come to this debate with absolute sadness at the missed opportunity before us in Bill C-58.

When the Liberals introduced this legislation, they called it in their press release “the most comprehensive reform of Access to Information in a generation”. It sure was not.

I want to talk about what the Civil Liberties Association has said, what first nations have said, what trade unions have said, what journalists have said, all of which has been to pan this effort as an appalling waste of time.

I could not do better than to quote my colleague from Skeena—Bulkley Valley, who in turn quoted the Information Commissioner, who has the most expertise of anyone on the bill. She said has said it is “regressive”. She has said to Canadians that if the bill were not significantly amended, “I would much prefer to keep the status quo”, namely, the Stephen Harper version of access to information than the one before us. That must be so galling for Liberals to hear. Then we heard today in the House, “Oh, no, that was before the wonderful amendments we brought in, which have made it all better so we should not be concerned”, referring to all those people who had concerns.

They have not made it right. They have made cosmetic changes to minor parts of the bill that make no difference to the main event, which has always been the exceptions to the rule of disclosure, the exceptions that carve away the right that was given in the main section of the bill, and those exceptions were not touched.

In committee I introduced on behalf of the NDP a dozen or more amendments to the exceptions, and not one was accepted. There were 20 amendments in total, but in regard to the exceptions, there were about a dozen amendments that many activists have talked about. This is not radical stuff. The Information Commissioner told us to suggest those amendments, not to make the bill regressive, but to make it better. How many of those were accepted? Zero.

The government has the gall to stand here before Canadians and take credit for something that is such an absolute farce. I find it appalling that we are in this position.

Yesterday, I had the opportunity, indeed the honour, to stand with five chiefs from across this great country who do research on residential school settlements, on grievances involving specific claims, on land claims generally, including cut-off land claims. Every single one of them said they were not consulted and that this law would make things worse. I thought no relationship was more important to the Prime Minister than with first nations. One could have heard a pin drop in that press conference as one after another stood up to castigate the Liberal government for yet another broken promise.

This is not just another bill. This is what the courts have termed “quasi-constitutional” legislation, in this case dealing with the essential right to know in a democracy. If we do not know what is going on and cannot find out, we live in a totalitarian state.

Back in the 1980s, the government at the time finally introduced an access to information bill, and a generation later it has ossified. It is legislation that no longer does the trick. The government did not even have computers in active use back then, so clearly things needed to change, and yet the changes the current government has proposed involve things like getting access to ministers' mandate letters.

Moreover, now the government can tell us what we want to know under something called “proactive disclosure”. Far be it for me to criticize making more information available, but proactive disclosure will involve the government letting us know by what it puts on a website, as if that were somehow the same as a person making a request to the Prime Minister's Office for information, as was done during the sponsorship scandal when The Globe and Mail and Daniel Leblanc told Canadians about the abuses of their tax dollars. That is because they had the right to make a request and, finally, ATIP delivered.

The government therefore wants to conflate access to information and proactive disclosure, a doctrine that has been around for many years in most provinces and in the federal government. It has been put in a statute and we are supposed to think it is the most comprehensive reform of access to information in a generation. It is just absurd.

I care deeply about this. I did my graduate work on freedom of information. I drafted the B.C. legislation and the Yukon legislation. I know when Canadians are being hoodwinked, and they are being hoodwinked by the bill before us. I think it needs to be withdrawn, and we need to do it right for Canadians. The experts are unanimous that the bill is in dire need of reform because the bill basically only codifies existing practices.

British Columbia and most of the provinces have a very simple way of enabling an information commissioner to order the disclosure of information. After a few days, if the government does not choose to judicially review the order of the commissioner, it is the law, and the government shall disclose it. I invite members to look at the so-called order-making power in the bill to see if they can figure it out, because the Information Commission does not believe it to be anything like what the term “order-making powers” would suggest.

Interestingly, I believe that the only private member's bill the Prime Minister sponsored when he was in opposition was on reforming the access to information and privacy acts. On the Access to Information Act, one of the specific things he wanted to do was to make ministers' offices open, which is to say that one could make a request and the office should respond, and likewise the Prime Minster's Office.

I will say it again, the government is conflating proactive disclosure, namely what it wants to tell us, and the ability of any citizen to ask for information and have the Information Commissioner order it disclosed. That is how it works in my province of British Columbia, and it works very well. Most of the time, cases are settled. Ninety-some percent of cases over the decades have been resolved through mediation. This need not be expensive. It need not be convoluted.

However, the government has provided something like a camel invented by committee. A horse invented by committee is a camel, and the bill before us is a camel. What if people wanted to know, for example, about the Prime Minister's Christmas vacations or whether a minister's villa were held within a private company? Would they be able to ask for that information? Well, it would not be proactively disclosed, I do not believe, which, of course, is one of the crucial difficulties with the proposed legislation.

Canadians also need to know that the government has not abolished the $5 fee, which is a tollgate on citizens' right to access. How much does it cost to cash a cheque for $5? It is $55. This is our government in action, which is why Canadians are basically paying millions of dollars to deny information to other Canadians. There is no duty to document, as requested by the commissioner. The exemptions have not changed, as I indicated, and every academic and every researcher comes down hard on this legislation. We know we are in trouble when the Canadian Association of Research Libraries comes down hard on a bill like this.

I want to end by saying, would it not be nice if quasi-constitutional legislation involving privacy and our rights to information were somehow taken more seriously, that we had an opportunity to really engage in debate at committee and, as a generational change, to get it right? Unfortunately, the government is about to deprive us of that right. The Liberals have used time allocation to bring down the guillotine so that we will not have any more opportunity to discuss this quasi-constitutional legislation in this place. It is a travesty. It is appalling. Canadians deserve better.

[The Speaker, Geoff Regan]

There will be five minutes for questions and comments on the hon. member's speech following question period.

The House resumed consideration of the motion that Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, be read the third time and passed.

Access to Information Act

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Mr. Speaker, I will be sharing my time with the good member for Kamloops—Thompson—Cariboo.

It is often said that image is everything. I share that observation because never before in modern day Canadian history have we witnessed a prime minister who is as image conscious as the member for Papineau is. I am not here today to debate the merits or lack thereof of that point, but rather to point out how that branding exercise led us to Bill C-58.

For those who were not here in the previous Parliament, I shall indulge a little. Shortly after becoming the leader of the Liberal Party of Canada, the member for Papineau was creating his brand. Part of that brand, and we hear it all the time, was the “sunlight is the best disinfectant” routine. It played well in the Liberal narrative that the former prime minister led the most secretive government in Canada's history, so the member for Papineau introduced a private member's bill to highlight that.

As some will know, during the last election the Liberals again made many of the same open government style promises, similar to what was in the Prime Minister's earlier private member's bill. As usual, these promises used many of the correct buzzwords. They looked good. They sounded good. There was only one problem: the Liberals got elected and now those promises have to be fulfilled.

That leads to our second problem. Bill C-58 does not do exactly that. In fact, it fails so badly that the Office of the Information Commissioner of Canada stated in the headline of a news release that “Bill C-58 results in a regression of the rights to access to information”. If we think about that statement for a moment, it is not by a member of Her Majesty's loyal opposition, or the third party, but from the office of an independent officer of Parliament.

Not only that, the bill actually breaks the Prime Minister's own commitments. Despite the commitment to apply access to information laws to the Prime Minister's Office and his cabinet ministers, they all get a pass. It is yet another example of there being one set of rules for everyone else, but a look-the-other-way clause when it comes to the most senior Liberal insiders. That is a growing problem with how the Prime Minister and his small, elite inner circle does things. Many of our constituents are becoming tired of it.

I was not a supporter of the Prime Minister's earlier private member's bill. As I was the parliamentary secretary to the president of the Treasury Board at that time, I was aware that some of the proposed measures were administratively problematic, and I came into this place and said as much.

The problem here is that those challenges were always well known, but in spite of them, the Prime Minister was happy to campaign on them and promise them anyway. Therefore, like many of those priorities and promises, they get thrown by the wayside now that the Prime Minister and his small inner circle control the levers of power.

That is not principled leadership. To promise things one can deliver on, but chooses not to do so is a betrayal. There are other words to describe that, but I would never want to be unparliamentary.

Here we are. We have a bill that the Information Commissioner essentially condemns. Virtually all of those who frequently make access to information requests and use the ATIP legislation have also widely condemned the bill. In fact, during my research, I could find no significant support for the bill whatsoever. If there is, I would really like to hear government members say so. Basically, all expert opinion gives it a fail. It does not meet the promises the Prime Minister made.

In fact, The Globe and Mail reports that Canada's access to information system has become worse under the Liberal Prime Minister. We all know that the bill would not fix that. Many experts suggest that it will only make things worse.

I will not suggest the last government was perfect on the subject either, but we were on the right track. In 2013, the former government released nearly six million pages of information to Canadians, an increase of over a million and a half pages over the preceding year.

Under Bill C-58, we will have a law that says the Prime Minister's office and his ministers can tell Canadians to pound sand when it comes to access to information requests. Keep this in mind. This is the same Prime Minister who was happy to build his brand and score points after promising he would do the exact opposite.

I will again ask the question I recently asked. The Prime Minister, as we all know, came into this place and said “Sunshine is the best disinfectant.” Why did he say that? Did he say it because it was politically convenient to do so at the time? Did he say it because it showed the principle should only apply to everyone else but himself and his ministers? Did he say it because it happened to be true?

Before I close, I will ask a question. Right now we have a very serious situation where single parents, primarily single mothers, are being unfairly targeted by the Canada Revenue Agency. As a result, in many cases, their Canada child benefits are being delayed, denied, or even clawed back in some cases. We also know that those with type 1 diabetes are also being disturbingly targeted by CRA.

I will credit many backbench Liberal MPs who I know are just as concerned about this situation as I am. I also know that several of them are reaching out to try to help some of those who are being unfairly targeted by this. Some have even stated publicly that they are also concerned.

The ultimate challenge is this. What is the minister going to do to solve this problem? Ultimately that is where the problem is. Thanks to Bill C-58, we will never know. That may be good enough for some. It certainly was not good enough for the member for Papineau, when he was handing out gift bags of election promises, a continued pattern of broken promises that results in one level of rules for senior Liberal insiders and another set for everyone else not the sunlight of disinfectant the Prime Minister promised.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, let us just assume for a second that the member is correct, which I do not believe he is, that the legislation does not attempt to fix the problems we seek to fix.

On what ground does the member and the opposing party have to stand when the Conservative track record did absolutely nothing for openness and transparency? The ministerial letters were all kept in secret. They did not advance any objective toward more openness, accountability, and transparency.

On what ground does the member and the opposition party have to stand in making the comments they are making today? I have been listening to them making these comments throughout the day.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, I heard the member during question period, and he asks a great lob question.

In 2009-10, we invested in access to information. It was a 10% increase, which saw, by the time 2013 came around, a reduction in the amount of time it took to get access to information requests. We were improving that record.

The bill would make it easier for someone to call it vexatious request and to deny the request for that reason. When he was a member of Parliament in the third party in the corner, the Prime Minister put forward a swath of propositions to improve the system, campaigned on them, and, in his own mandate tracker, has said that the Liberals are on track to do them, when the bill would do nothing for it.

By the Liberals' standards of transparency, the mandate tracker and Bill C-58 leave much to be desired.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, consistently Conservative after Conservative stands and tries to give what I would classify as a false impression. We know that within the legislation there will be more accountability, transparency, and proactive disclosure. The commissioner will have more authority. No matter how the Conservatives try to twist and bend that, the truth is the truth. We will see more transparency and accountability with the passage of the legislation.

Why does the Conservative Party oppose the Government of Canada, once again, fulfilling another election platform by ensuring more accountability and transparency in the House?