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.

Access to Information Act

[David Tilson, Conservative, Dufferin—Caledon, ON]

Madam Speaker, on a point of order, the member is giving an interesting speech, but I do not think there is quorum.

[The Assistant Deputy Speaker, Carol Hughes]

We do have quorum now.

The hon. member for Edmonton Strathcona.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I thank my colleague from the Conservative Party for getting a few more members to join us to hear my recommendations to strengthen the bill before us. Of course, we do not mention names in this place, but it is nice, and I can feel the room warming up already.

Where have the Liberals failed?

Well, there is no duty to document decision-making processes. The bill would allow information to be labelled as cabinet briefings to deny access. It would introduce yet more exceptions. It fails to require a harm test, which is a specific recommendation made by the parliamentary committee. It fails to prescribe in law an explicit public interest override, another recommendation by the parliamentary committee.

The Liberals are not willing to listen to the recommendations at committee. They are not willing to listen to the amendments brought forward. It really begs the question of why we work so hard in this place, why we diligently go through the bills, have witnesses come in, and make recommendations to strengthen the bills before us, because the government simply dispenses with them.

Therefore, it is with great sadness that, yet again, we have legislation tabled in this place that breaks an election promise. The Liberals have not provided sunshine and greater access to information for the public. They have not included what is most important of all. They say they are going to provide for proactive disclosure, but the best way to do that is to include provisions for whistle-blower protection. They have not done that, and so have put a cork in the mouths of their officers, who would otherwise readily disclose information to the public.

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

Madam Speaker, obviously, I do not share the opinions of the member opposite. We made a commitment, and that commitment will be realized by the eventual passage of this legislation.

There is no question that the legislation includes measures that will allow for more accountability and transparency. When the member quotes individuals, I believe the quotes she cites date from before the amendments were made. Yes, there were no NDP amendments accepted, and the Conservatives did not offer any amendments, but the government does more than just listen to New Democrats and Conservatives. There are other stakeholders, and there were many amendments made to the legislation. Could the member tell us whether those quotes she just listed were before or after the amendments were made?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, there were no amendments made, so I have a hard time responding to the question. The hon. member says we did not list other people. How about Duff Conacher, the founder of Democracy Watch? How about Mark Weiler, web and user experience librarian? How about Katie Gibbs, executive director of Evidence for Democracy? They also gave scathing reviews of the bill.

If the government is not even willing to listen to the testimony of its Access to Information Commissioner, who is it willing to listen to? The Liberals made a big promise. They broke the promise. The President of the Treasury Board promised that he would be open to amendments and he rejected them all.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, many times in the House today we have heard increased rhetoric about more accountability, often referencing the mandate letters. I had an opportunity on a number of occasions to refer to the Minister of Finance's mandate letter, dated November 12, 2015. The very first bullet point of the letter the Prime Minister delivered to the finance minister says, “In particular, I will expect you to work with your colleagues and through established legislative, regulatory, and Cabinet processes, including our first Budget, to deliver on your top priorities:”

The very first priority was to “Ensure that our fiscal plan is sustainable by meeting our fiscal anchors of balancing the budget in 2019/20 and continuing to reduce the federal debt-to-GDP ratio throughout our mandate.”

Balancing the budget in 2019-20 is a clear promise of the Liberal platform. It is clearly outlined in this mandate letter, yet we have often heard today how great these mandate letters have been. I wonder if my colleague would agree the mandate letters do not seem to be worth the paper they are written on.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, not speaking to the specific provision the member read from, I do recall that every single mandate letter stated that every member of cabinet would be accountable for greater openness and transparency and consultation with the public. I used to be on the transport committee. Now I am on the environment and sustainable development committee. It is the same requirement for both ministers. The government, because it has delivered a poor bill before us, is simply not delivering on that overall promise for greater sunshine in access to information.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, just to seek clarification, does the member opposite believe there were absolutely no amendments brought forward to the legislation?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I do know they accepted one from another party, and it is my understanding that they rejected every single one from my party.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am going to speak to Bill C-58. Prior to its tabling, it offered a lot of promise to Canadians, who have been concerned for a long time about the access to information regime in Canada.

Unfortunately, I do not think my remarks will differ from those I made early on in the debate about Bill C-58 before it went to committee, because not a lot has changed substantially about the bill. We are still largely confronted with the same issues as when the bill was originally tabled.

The main point is a sense of lost opportunity. That is clear, not just to members of the NDP caucus, but to a lot stakeholders who have criticized the bill, as well as the stakeholders within the access to information community who testified at the access to information committee during what was a long and thorough study of Canada's access to information laws.

There have not been any real changes to the Access to Information Act since it was first brought introduced in 1983. I am sure that members of the House will appreciate that the way government does business has changed radically since 1983. If we think of the technologies that were available in 1983 versus the technologies available now, and the way those have become part and parcel of the way that government conducts its business, it is clear that reform of the access to information laws is necessary.

With changes being proposed to the laws, there was a great opportunity to address a number of problems. What were some of those problems? One of the important problems in my view is that cabinet ministers can say that whatever information is being requested falls under the purview of cabinet confidence. If it said to be advice to a minister, it cannot be touched. Fine, I think there is a legitimate space for some advice to ministers to be protected, except there is no ability for anyone, including the Information Commissioner, to assess whether that information has been denied properly, under the rubric of advice to ministers, or whether ministers were just making it up or saying that it was advice to ministers when it in fact it was not really advice to ministers.

Canadians must have confidence in the access to information system to know that when they are being told that something is advice to a minister and cannot be shared because it would hurt the public interest, this is true. I do not think we are in a situation in which Canadians have that confidence. I do not think Canadians had that kind of confidence in the last government, that is for sure, and I do not think Canadians have that kind of confidence in the current government.

Let us consider one of the important themes in question period for months now, indeed throughout the fall. It is about whether or not the Canada Revenue Agency made a deliberate decision to change its interpretation of a policy in order to deny the disability tax credit to people with diabetes. It turns out, as we found out this week, that in fact there was a memo circulated within the CRA back in May of this year that said very clearly that CRA staff who were evaluating those applications ought to err on the side of denying those applications, regardless of the advice of a physician or a nurse.

What has the minister said in the House? The minister has denied that a decision was made to this very day, despite the evidence that a decision was indeed made. What confidence can Canadians have in a system that might have allowed that minister to say that the memo was covered by a cabinet confidence? If she had invoked the exclusion, and I do not want to give them ideas, that would assume that the memo came through the access to information process. I am not sure that one did.

The point is that had someone made an access to information request and the minister's office had decided to call the memo an excluded document because it was advice to the minister or something else, no one would have been able to circle back and evaluate whether that was true or not. I think it is pretty clear that a memo to employees is not advice to a minister.

However, the point is that the Information Commissioner would not have been able to circle back, look at that document, and make an assessment as to whether or not that exclusion was rightfully applied. Canadians would still be in the dark about that very clear decision by the CRA to change the way it interprets its own policy.

While it is true for the minister to say that the policy on paper has not changed, it is misleading. Clearly, there was a directive given on how to interpret that same policy that radically changed the balance of acceptance and denial with respect to people with diabetes who are applying for that tax credit. That is the kind of thing that Canadians want to have access to and demonstrates why Canadians would want to know. Canadians want to know as it has a real and material effect for people who are living with diabetes, on their taxes, and what comes back to them from their tax return.

People also want to know because that document contradicts what the minister has been saying. They want to have that evidence and be able to follow through, to see if what the minister says is true and borne out within departmental directives.

One of the important things coming out of the study on access to information was the idea that an independent third party needs to verify a minister's use of that exclusion. Otherwise, it just becomes a huge blanket by which ministers can snuff out all sorts of information that would be politically inconvenient for them but important for Canadians to know and assess the government's performance. That is one of the ways that this legislation has failed.

Another obvious failure is with respect to the black and white commitment by the Liberal Party in the last election to have this apply to the PMO and ministers' offices. We did not make that up. It is not a partisan statement. That was a real commitment. It was part and parcel of the Prime Minister's own private member's legislation in the last Parliament. However, that is not in this legislation or something they chose to do.

Whether we think it is a good idea to have those things apply to the PMO or the ministers' offices, it was a very clear commitment of the Liberal Party that they would do so. The question is why is it not borne out in the legislation? They created a real mandate for openness and transparency and have the backing of Canadians, to the extent that they want the government to be more open and transparent.

They could have done a lot of things to help Canada be a model for openness and transparency. The problem is that is not what Bill C-58 delivers. It does not deliver that because it does not address serious problems that have come out of other jurisdictions.

It was in the news for some time that B.C. had an issue with documentation of government decisions that could be accessed through access to information. Government staff, and particularly political staff, responded by simply not documenting the outcomes of important meetings where decisions were made. That rightly created quite a stir. It was, and continues to be, a strong recommendation of the information commissioner that a legal duty to document needs to be established so that the political staff of ministers cannot get around accountability by not writing down the substance of important decisions made in private meetings. Eventually, it would be accessible under access to information. The government has not done that, and it is disappointing.

I do not want to sound naive or silly. When I first became a member of this House I was a member of the access to information committee and we had the President of the Treasury Board come a number of times. He repeated that one of the things he was looking forward to doing and glad that he had a mandate to do, was to change Canada's access to information laws. That was a real priority for him. He gave timelines, which he ignored.

Bill C-58 came much later than originally promised. When it did finally come, it did not honour what critics and stakeholders said we needed as an ideal access to information regime in Canada or the Liberals' own concrete, black and white election commitments. If that is what it means to be a priority of the Liberal government, Canadians should think twice about being on their priority list. There is a lot of other stuff being done that was promised in the last election. Those things are being done and this is not.

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

Madam Speaker, I am somewhat hopeful that I might have a better chance of getting a response from my colleague from Winnipeg.

Many of the quotes that the New Democrats are using in their speaking lines are quotes that are actually from before the amendments were made, and there were a number of amendments made to the legislation that we are debating today. I was just looking for confirmation as to whether the NDP had the opportunity to update its speaking notes given the changes to the legislation.

Second, and what is important here, is in regard to the whole issue of proactive disclosure. What we see here is more proactive disclosure, whether it is ministers, the Prime Minister's Office, or departments. We are seeing a more empowered commissioner who would actually be able to request reports and get the reports. This is legislation that would ensure more transparency and accountability, as opposed to what the unholy alliance from across the way is saying. I wonder if the member across the way would at least acknowledge that with those changes there would be more accountability.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I do not think proactive disclosure by ministers who decide what to proactively disclose, without any independent oversight or input from Canadians, is more accountability.

[Tom Lukiwski, Conservative, Moose Jaw—Lake Centre—Lanigan, SK]

Madam Speaker, I would like to ask my colleague from Winnipeg a very simple question. He alluded to it during his remarks of just a few moments ago. It seems that Canadians have been misled in the intentions of the Liberal government with its stated purpose of improving access to information when in fact, what we know now about the details of Bill C-58 demonstrates quite clearly that it is more difficult right now for the average Canadian to access information from the current government. I would like to hear my colleague expound a bit about why he thinks that is and what might be done to try to improve this badly flawed bill.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, maybe I will come back to this point about proactive disclosure because this is the sleight of hand that the government is trying to use. The Liberals are trying to say that Canadians are going to have more information because now the government is going to have proactive disclosure by ministers. Of course, the access to information regime is not about ministers deciding what they want to share with the public. Ministers have always been free to share that. In fact, they do not need to change the law to allow for proactive disclosure. Listening to the Liberals, one would think that somehow ministers have been prohibited from sharing any information they liked with the Canadian public up to now and thank God we have a Liberal government that is going to let ministers share their own information with the Canadian public as if that is what is needed, when it is clearly not.

Therefore, this whole thing is just a really rinky-dink talking point to try to cover over the fact that very clear commitments were made about improving the access to information regime before the election by the Liberals and after the election. They are trying to pretend that somehow ministers were being gagged by anyone other than maybe the PMO, although it is not like this would allow ministers to release information that the PMO does not want released because presumably the PMO is going to have something to say about what information those ministers release. If they somehow were protecting ministers from the oversight of the PMO in terms of the information they want to release, that might get to be an interesting legislative fix, but of course, that is not what it is.

Therefore, the Liberals' whole centrepiece of this legislation is proactive disclosure. It is a solution to a problem that did not exist and they want to talk about that instead of talking about the commitments that they did want to talk about just two years ago when they were running to be government, criticizing the previous government for its culture. We have heard critics of the bill who were involved in the access to information community say that actually this would make things worse. Now we have an access to information bill passed in 1983, the year before I was born, people calling for change because they want to make it better, and we have a bill that is actually going to make it worse.

We have a 30-year-old bill that needed to be changed, not for the worse but for the better, and now we are passing up that opportunity, for reasons unknown. This whole talk about proactive disclosure, as if somehow that is a substitute for meaningful reform, is just ridiculous.

[Tom Lukiwski, Conservative, Moose Jaw—Lake Centre—Lanigan, SK]

Madam Speaker, I will be splitting my time with my good friend and colleague from Edmonton West.

All through today's debate, I kept reflecting on an old proverb that we have all heard many times before, that the road to hell is paved with good intentions. The government at one point in time actually had some good intentions about reforming the Access to Information Act. At one time, the Liberals might have been genuine when they said they wanted to improve the Access to Information Act, but somewhere along the line on that road, something went terribly wrong because the bill we have before us now, Bill C-58, is far more regressive and prohibitive to Canadians seeking to access the government's information than any access to information bill before its time.

I should say at the outset that I believe that over the last 34 years, ATIPs have proven to be extremely helpful to Canadians. Clearly they have been helpful to politicians who are trying to find out more information about the government of the day, particularly opposition politicians. These access to information requests have also been extremely helpful to journalists, because we have seen over the last number of years journalists break stories about some unethical action of the government of the day. Has that improved the ability of Canadians to learn more about their government? It certainly has.

Now Bill C-58 tends to want to reverse some of the strides that may have been made over the past several years. One of those strides was made by our government, when we were in power, to reduce the amount of money it cost the average Canadian to file an access to information request. We reduced that to $5, meaning that any Canadian who wanted to get more information about a government department could fill out a form and with only a $5 fee, receive an answer from the government department they were querying. That was a good thing and one of the things that helped Canadians become more comfortable with their own government.

However, ATIPs have been invaluable not just to Canadians, to politicians, and to journalists, but also to society as a whole because they have allowed Canadians to learn more about their government in a fashion that gives them confidence in the government of the day. We know of many ATIPs that have been successful and have been newsworthy. The one that most Canadians recall was the sponsorship scandal. It is ironic that we are debating Bill C-58 today, because the sponsor of the bill was, in the early 2000s, a minister in the Liberal cabinet, I believe as minister of public works, who day after day during question period had to stand and defend his government against opposition attacks as we found out more information from the Gomery commission and its investigation.

I recall vividly, as some of my colleague will too, the minister of the then public works department standing and saying in response to opposition questions, “Let Justice Gomery do his work.” That was his standard talking point. He would not answer any direct questions. He would simply say let Justice Gomery do his work. At the end of the day, Justice Gomery did fine work because he exposed the ethical shortcomings of the Liberal government of the day. He exposed the rampant corruption within that government and, frankly, the stench of that corruption stays with me today because I recall how the government abused the trust of the Canadian people when it came to the sponsorship scandal, particularly how Liberal ministers ignored the very fact that their own party operatives were charging for work that was never done and pocketing the money themselves, to benefit themselves financially.

How did we find out about that corruption? It was through an ATIP, through one reporter, Daniel Leblanc, who studiously examined what he thought was a corrupt system in the Quebec government of the day and started asking questions.

Finally, his request for information was answered. That was the start of the sponsorship scandal.

The point I make today is simply this. If the changes proposed by the government on Bill C-58 are enacted, reporters like Daniel Leblanc and others who expose such clear wrongdoing by the government would be the unable to access that information. That is simply wrong. That should never be allowed to happen. Any government, whether it be a Liberal government, a Conservative government, a New Democratic government, or any government in this country, should not be allowed to deny access to Canadians about information of their government.

We all know that governments are a servant of the people. We serve the public. We are supposed to be serving the public's interest. The public's interest in this case will be denied simply because we have a government that is embarrassed about some of its previous ethical lapses and frankly wants to cover them up. I can only point to the most recent example of what might happen if Bill C-58 is passed in its current form, and that is with the most ethical transgressions by the Minister of Finance.

We know now, thanks to an ATIP from reporters at The Globe and Mail, what the current Minister of Finance was hiding from Canadians and from the Ethics Commissioner. We know now, thanks to an ATIP, that the current Minister of Finance had a villa in France that he did not disclose to the Ethics Commissioner for two years, a villa that we can only assume is worth in the millions of dollars because of its locale in one of the wealthier regions of southern France.

We know now, because of an ATIP, that the same Minister of Finance had a numbered company in Alberta that was not disclosed to the Ethics Commissioner. It contained approximately $20 million in shares in a company called Morneau Shepell, which the Minister of Finance formerly used to run, a family-founded, family-run, very successful company, that had obvious direct ties to the Minister of Finance. We know that now, because reporters, journalists, requested access to information that uncovered those ethical transgressions.

If Bill C-58 is adopted, those opportunities will be lost. That should not be allowed to happen. Governments must be accountable for their actions. Governments must be accountable to the public. One of the ways to ensure that it is accountable is by allowing the public, whether it be opposition politicians, journalists, or advocacy groups, to gain information from their government without fear of retribution and without fear of censorship.

Bill C-58 is so desperately flawed that Canadians who have been examining this legislation and listening to this debate must feel that they have no more confidence in the government. In fact, what Bill C-58 does is to make information unavailable to Canadians should the government determine that it does not want to release what it considers to be sensitive information. That is right. It is not up to the government to release information upon request. The government feels that it is within its purview to deny information if it feels it might embarrass them, if it feels that the information is not in its best political interest. That is not only shameful, it is offensive, and should not be allowed to happen.

I know that my comments are falling on deaf ears when it comes to speaking to members opposite, but I beseech them to reconsider this flawed bill, take it back to the starting board, and if it truly wants to make access to information a reality, redraft and redraw this bill.