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

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, I rise to add some comments to the debate today. I am not pleased to rise to add comments, because, again, we have before us legislation that certainly does not live up to the standards the government has set for itself, and is significantly flawed.

One of the most concerning things about the legislation is this, and it is important for the listeners to hear is this. If the Liberals think the legislation is right, they should also listen.

This is from Suzanne Legault, the Ethics Commissioner. She said:

When I was preparing for this committee, I went back to the request that was made by Daniel Leblanc, the journalist who uncovered the sponsorship scandal. That request would not have met the...requirement under Bill C-58.

As people might recall, the sponsorship scandal was a Liberal scandal. Millions of taxpayer dollars were diverted. Therefore, for the Liberals to have legislation before us that they are saying is adding benefit and value, when Suzanne Legault says that about it, we wonder what they are trying to do and what they are trying to hide.

The amendments to Canada's Access to Information Act will affect every organization that shares information with the federal government and every individual who wants access to that information. While the Liberals are claiming to improve the act, the content of the bill is not only deficient in truly bringing the act forward, but it also opens a lot of loopholes for the Liberal government to refuse to process certain information.

I will look at something that has been happening over the last few days.

This morning I was at the AFN conference and I listened to the minister speak. She talked about how long comprehensive and specific land claims took and how that was unacceptable to the government. She talked about needing a process that moved forward in a more robust way to recognize aboriginal title rights and to resolve these long-standing issues. On the other hand, and this was quite ironic, she said this to the assembly of chiefs, that today we were debating this legislation in the House.

This is what some very important indigenous organizations have said about this.

The National Claims Research Directors stated:

Bill C-58 will greatly impair the ability of First Nations to document their claims, grievances, and disputes with the Government of Canada and will significantly impede First Nations’ access to justice in resolving their claims. The Bill...significantly undermines First Nations’ existing rights of access to information.

That hardly sounds like the commitment the minister made this morning to the chiefs, to have a bill before the House that would significantly impact their ability to do the very thing that she said needed to move forward in an expeditious way.

The Office of the Auditor General of Canada recently conducted an audit of Canada's specific claim process. The OAG report, released in November 2016, concluded that Canada's Department of Indigenous and Northern Affairs introduced numerous barriers that hindered the resolution of claims, including by restricting information.

Therefore, if passed into law, Bill C-58 will impose substantive new barriers to the resolution of first nation claims. It will also provide legislative authority for the suppression of evidence, which first nations require to pursue their claims against Canada. Revisions to the act will enshrine into legislation overly prescriptive and inappropriate requirements for applicants seeking records, as well as providing legislative grounds for government bodies to deny access to records that are vital to first nations.

Therefore, it is important to look at what the government has said it will do and what it actually does when it puts legislation forward. This is truly another broken promise by the Liberal government.

During their election campaign, the Liberals claimed they would extend the act so it applied to the Prime Minister's and ministers' offices. However, that will not be the case.

Katie Gibbs, executive director of Evidence for Democracy, has stated:

By excluding the ability to request information from ministers' offices and the PMO, this government falls short of meeting their campaign promise to make government “open by default”.

Moreover, this legislation would enable the government to refuse any access to information requests if it believes they are vexatious, made in bad faith, or a misuse of the right to request information. Refusal to respond to a request will be subject to a right of complaint to the Information Commissioner. The Information Commissioner will have the power to force communication of every document or part of it under the control of federal institutions.

A government that chooses what to publish and when is not democratic and cannot be accountable to its citizens. That is fundamental. For all their talk about sunshine being a disinfectant, the Liberals have introduced darkness through the back door.

In a democratic state, a government should be open and transparent to its citizens, so why are the Liberals going out of their way to hide behind closed doors and refusing Canadians the right to fundamental information?

Duff Conacher, co-founder of Democracy Watch, states:

The bill take a step backwards in allowing government officials to deny requests for information if they think the request is frivolous or made in bad faith. Public officials should not be given this power, as they will likely use it as a new loophole to deny the public information it has a right to know.

I am going to tell the House about a personal situation closer to home. I have a constituent who faced a significant small business challenge, and while he was in Ottawa he met with a number of different folks within the government, including some policy advisers. He needed to get some information from the Canadian Food Inspection Agency. He was facing a difficult situation, and when he looked into getting information, he was told that it would take 479 days to obtain what he needed. He would have to wait one year and 4 months to obtain information that was critical for his business, and not only his livelihood, but the livelihoods of his many employees.

Despite the promise to be more transparent, the Trudeau government is failing. As the Toronto Star has stated:

The national freedom of information audit found the federal access system is bogged down to the point where, in many cases, it simply doesn’t work....

The researchers found the federal system continues to be far slower and less responsive than provincial and municipal freedom of information regimes....

Just one-quarter of requests to federal government departments, agencies and Crown corporations were answered within the 30-day limit. One-third of the requests had not received a response by the end of the audit, which means those requests were outstanding for three months or more, with most closer to four months. The RCMP, Health Canada and National Defence were three institutions that cited large backlogs of requests, leading to bottlenecks and delayed responses. Information on pages eventually released under the federal access law can be blacked out for a variety of reasons including national security, legal privilege and commercial confidentiality.

They would get stuff that was totally blacked out.

Clearly the system is not working. The Liberal government committed to fixing the system and, quite frankly, it has made it much worse.

The Liberals issued their own mandate tracker, which has been quickly derided, but gave themselves an A+ for moving this legislation forward and telling Canadians how valuable, important, and great it would be in terms of new transparency. That is completely inaccurate.

I started my remarks by saying if this were in place and if it had cut off the initial investigation of the sponsorship scandal, then it is clearly not a piece of legislation that should pass through the House.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Madam Speaker, I was listening with interest to the presentation across the way and heard a lot of criticism of how the system is currently functioning. The member said it is slow and people are not getting the information they want. As far as I know, the Access to Information Act has not been updated in 34 years. She and members of her party had an opportunity to update that legislation, taking into account all of the changes that have been happening with the Internet and the like.

Does the member not think it was a priority to deal with that so we would not have to wait? Clearly, she feels that the current situation is unacceptable and that change is needed, which is exactly what we are doing.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, I was very proud when the Conservatives came into government that the accountability act was a huge step forward. However, no update is better than a bad update.

What we have now are first nations communities saying that the current government will make their lives more difficult, and Suzanne Legault saying that first nations cannot get information that was really critical in the past. It would not meet the new standards that have been set.

I would finish by saying that the Liberals have introduced legislation that is worse than the status quo, and the status quo was not acceptable.

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

Madam Speaker, to follow up on the exchange between my colleague on the Liberal side and my friend from British Columbia, the Liberals seem to be saying that these changes in Bill C-58 will increase transparency and assist Canadians in getting more information from their own government. In fact, it seems to be far more regressive than anything we have seen in the last 34 years.

Does my colleague from British Columbia think that if the changes in Bill C-58 are legislated, it would mean that the government would, on its own volition, be able to determine what information it chooses to give to Canadians?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, that is an excellent question. Clearly, that is what this bill would do.

Had it been the previous Conservative government that introduced this bill in a similar form, the Liberals would have been outraged and pointing out its flaws, just as I have today in my speech. They would not have supported it for a minute. While the government says this bill is so transparent and such a great move forward, I am almost certain they would never have supported it in the past when we were government.

[Andy Fillmore, Liberal, Parliamentary Secretary to the Minister of Democratic Institutions]

Madam Speaker, my thanks to my friend from Kamloops—Thompson—Cariboo for her intervention today. I am struck by the characterization of this bill as regressive when, in fact, it addresses a number of issues that were highlighted by Canadians during the previous government's tenure, but never acted upon.

“Open by default” is now the official stance of this government, as pronounced by the Treasury Board. We are seeing great advances toward that, such as the order-making power for the commissioner and disclosure requirements being extended to the Prime Minister's Office and to officers of Parliament.

However, I do want to ask a question about my colleague's remarks on indigenous affairs. I will begin by commending her for her tremendous work on behalf of indigenous peoples in Canada.

Members of indigenous claims organizations, who are very important stakeholders in this, were consulted. That is why a number of amendments were made at committee. Does the member think those amendments were helpful to indigenous claims organizations?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, the AFN is looking at issuing an emergency resolution because it is so concerned about this particular bill. Clearly, whatever amendments were done at committee were not satisfactory.

That is all we need to say on that issue.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Madam Speaker, I recently became chair of the access to information, privacy and ethics committee, where this bill was brought. We talked about all of its positives, which were few, and many of its shortcomings. The shortcomings were highlighted by the many witnesses we heard from.

I think the most significant would be the commissioner herself, who said:

When I was preparing for this committee, I went back to the request that was made by Daniel Leblanc, the journalist who uncovered the sponsorship scandal. That request would not have met the new requirement under Bill C-58.

That highlights what I want to speak to today. We have heard many talking points. It is one thing to actually be in committee and hear all the testimony exposing all of the problems with Bill C-58, but another to hear other members regurgitate talking points that just demonstrate their lack of knowledge of the opposition to the bill.

That is what I want to point out today, the contrast between that and a government that came in with sunny ways and wanted to have sunlight shining on problems to highlight issues.

I neglected to announce that I will be sharing my time with the member for Kitchener—Conestoga.

What I think people watching this debate today need to understand is that they have been sold the idea that the government is more open and accountable, and that what is really happening is the opposite. What is happening through Bill C-58 is actually more cover-up, from ministers' offices, the Prime Minister's staff, etc.

We are going to see more cover-up and more protection of information. Frankly, as the commissioner mentioned, access to information is why we found out about the sponsorship scandal, and why a previous Liberal government failed and did not get re-elected, because of that particular scandal and the really bad things that were happening that we found out about as a result of that information.

I am just going to read through a few quotes for the benefit of those watching today, from a few of the people who oppose the bill. It is not just Conservatives who are opposed to this, or New Democrats, although both parties are. It is groups outside this place who have spoken against it. I will first cite one particular quote by Mr. Marleau, the information commissioner from 2007-09:

For the ministries, there's no one to review what they choose not to disclose, and I think that goes against the principle of the statute.

He further stated:

They’ve taken the commissioner out of the loop. If you ask for these briefing notes, and you’ve got them and they were redacted, you had someone to appeal to. So there’s no appeal. You can’t even go to a court. It’s one step forward, two steps back.

Again, let us let that sink in a little. Liberals give the illusion that they are moving forward on the issue, and, really, they are moving backwards. It is deliberate, because they want to cover up or have the ability to cover up some things being communicated in the Prime Minister's Office.

Again, I have another quote, this time from Vincent Gogolek, another individual speaking against this bill:

All they have to do is claim it’s a cabinet document, and then with her new improved powers she still can’t look at it, which is ridiculous.... So, when in doubt, call it a cabinet document. That’s the big problem, and that remains untouched.

All that needs to be said about a particular document in government is that it is a cabinet document, and therefore black ink will go across it whenever it is requested. Again, it is one thing to say this about any particular government that does not make claims about being more open and accountability, but another to say it about a government that campaigned on being more open and accountable. This is what the Prime Minister's schtick was about: sunny ways and shining a light where there previously were shadows. It is is simply a bait-and-switch. It is saying one thing and doing another.

I have another quote, this time by Katie Gibbs, executive director of the Evidence for Democracy Group, who said:

By excluding the ability to request information from ministers' offices and the PMO, this government falls short of meeting their campaign promise to make government 'open by default'....

Moreover, the possibility of refusing certain access to information requests on an undefined basis jeopardizes the transparency and openness of the government.

Once again, another person outside this place is saying that the proposed legislation is supposed to be doing one thing, but it is doing completely the other. It is causing more cover-up to be possible rather than exposing the truth.

Duff Conacher, co-founder of Democracy Watch, said that the bill proposes good amendments by requiring a more proactive publication of some information and giving the information commissioner the power to order the publication of some information, but it does nothing to fill the huge gaps in the act as was promised by the Liberals. Therefore, we need more changes to have a government which is transparent and open by default.

Let us think about the sponsorship scandal and the evidence that was being put forward, and the government just saying no, that it is not going to talk about it.

Mr. Conacher says the bill is “a step backwards in allowing government officials to deny requests for information if they think the request is frivolous or made in bad faith.” Public servants should not have this authority, because “they will likely use it as a new loophole to deny the public information it has a right to know.

I will speak as chair of the access to information, privacy and ethics committee. Some of the information that was brought before committee really attempted changes based on the recommendations. It was our party's position to support the recommendations of the Information Commissioner, and there are several. It was our position to see those go through. Well, the bill was not changed. The bill has not been significantly changed, and therefore it is still a problem for us.

I was hopeful that the Liberals would take the Information Commissioner's recommendations and understand that maybe it was a flawed document initially, which they would now fix. However, that did not happen in committee, and I want Parliament and people watching today to understand that. Again, the government is saying one thing and doing another.

An article in iPolitics by Steve Mayer is entitled “Liberals shockingly timid on access-to-information reform”. This does not sound like a government that wants to change access to information in a positive way. It sounds like it is going the other way, as I said before. However, the article reads:

We don’t really know, though, because the emails that would tell the tale are in the inboxes of the prime minister’s staff, and the Access to Information Act does not apply to ministerial staff...What the government has decided to do is not what Information Commissioner Suzanne Legault recommended, which is to have Access-to-information officers determine whether emails and memos from ministerial staff are political or parliamentary (in which case they would remain confidential)

The commissioner does not even have the ability to decide which is which. It is all in the hands of the Prime Minister's Office and ministers.

The article continues with:

or pertain to running a department (in which case they would be releasable). Instead of doing that — which is what they promised —

Again, this is an article talking about what the Liberals said they were going to do in Bill C-58. It continues with:

[the minister's] changes to the act would provide for the proactive disclosure of documents — briefing books and notes for question period — that until now have been released only in response to requests.

This means many useful documents will be released routinely, and it follows similar measures that Trudeau began in opposition, when he unilaterally released personal financial information and got his MPs to start posting their expenses online.

Again, the article is not criticizing him for the positive steps that he has made, but certainly the cover-up continues.

As chair of the committee, there was a hope that this would be something that the Liberals would follow through on and take the recommendations of the Information Commissioner. However, we saw quite a different story. We saw a government that would talk one game in front of the cameras and one game on the campaign trail, but when it came to making solid legislation that would expose those shadows that I had mentioned, it did the complete opposite and would give the ability for ministers to shadow even more information.

Sadly, this is what we are debating today. I hope the government does see sunnier ways and votes against Bill C-58.

[The Assistant Deputy Speaker, Carol Hughes]

Before I go to questions and comments, I want to remind the member that he cannot use the name of a member who is or is not in the House but who is a sitting member.

Questions and comments, the hon. member for Toronto—Danforth.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Madam Speaker, I really appreciated hearing the rundown and commentary about the bill, yet clearly what keeps on being flagged as I am listening to this conversation is that there is a need for greater access to information, a need to open things up. The current system clearly needed to be worked on and this is what we are doing. I see a bill before the House that addresses the very types of concerns put forth.

The fact is it is wonderful to push back and say here are all these problems, but there were some constructive changes made at committee and perhaps the member having a role on the committee would like to speak to the amendments that were made at committee to make the bill better.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Madam Speaker, I do not remember the member being at committee to witness what the testimony was and what the recommendations were. We are not talking about dotting i's in certain areas and crossing t's in other areas. We are talking about substantive changes to make the shadows that exist in the bill not shadows any longer. We simply did not get that at committee.

What is a concern to most of us is similar to what the Information Commissioner Ms. Legault has been saying. At least the status quo stays the same, but what is worse is by introducing something that is worse. The changes the government is proposing to the current law are going to make it worse. Once again, a government that is supposed to shine light on the shadows is trying to build more and that is unfortunate.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I hate to say I enjoy this phenomenon that happens in the House when the Liberals and the Conservatives stand and accuse each other of being worse at things. Here again, the Conservatives say Liberals are worse than them and the Liberals say they were terrible, but we do not get to a solution that serves Canadians.

Why is it that, no matter what political stripe, Liberal or Conservative, governments have found it so easy not to adopt the very obvious recommendations that we need so Canadians can get access to information in a timely manner?

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Madam Speaker, the member from the other party likes to watch us debate this issue, but everyone on our side says if there is something that needs to be exposed, we should absolutely expose it. We are sent here to be a democracy in this place.

As the member for Prince George—Peace River—Northern Rockies, we want to have truth exposed in this place so the taxpayers can see what we are doing. We have done that. As the member to my right has said, we are the ones who brought in disclosure of our finances as members of Parliament. That is something the Conservatives have brought to shine the light on what we do in this place and some of the Senate reforms that have come in as a result, when we were in government previously from 2011-15.

There is a lot of talk about what we did not do. I know the NDP and Liberals like to talk about that because it is popular to bash Conservatives, but when we were in government we did exactly that. We did cause greater scrutiny for ourselves and exposed to the outside what we do on a regular basis. That is what we really did.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, during the debate today, much of the commentary from the governing party side has amounted to more or less “since there has been no change to the bill in 34 years, should we not give Liberals enormous amounts of credit for stepping up and changing the bill and vote for it”. I thank the member for pointing out that sometimes a bad bill is actually worse.

Could he perhaps comment on the extraordinary amount of credit that the party seems to be seeking, while more or less asking us to give it credit for breaking its own election promise and supporting the bill?

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

Madam Speaker, I have said that it is not doing what it is purporting to do in exposing those shadows. That is the biggest thing that let me down. I have always said in past campaigns that if it is a good idea, it is a good idea regardless of whether it comes from an NDP member, a Liberal member, or a Conservative member. If it is a good idea, it is a good idea. If there is truly this open and accountable government and we want to shine a light where it needs to be shone, I am absolutely supportive. We are deeply disappointed it did not go where the government promised it would go in Bill C-58 and that is unfortunate.