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.

[Caroline Maynard]

I can tell you that I have shared three concerns, currently, with Bill C-58. The key area is the mandatory requirements in section 6. I do believe those requirements will limit access and will probably even deter people from asking for information. I've also made clear to Mr. Brison and his team, and to Senator Ringuette, that it's a concern I'd like to talk to them about. I don't think it's necessary. I think the status quo with the Access to Information Act will be better for Canadians.

Also, the transition period for the order-making power is a concern. The lack of enforcement for the order-making power is also something we want to address. The current Bill C-58 doesn't provide me with the authority to get a certification of the orders at the Federal Court level. Not having a mechanism to ensure they respect the orders could potentially lead an institution to not abide by those orders.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair, and thank you, Madame Maynard. It's wonderful to have you at our committee again.

I want to follow up on my colleague's direction. Your predecessor was very scathing in her analysis of Bill C-58 and its threat to access to information. The Canadian Journalists for Free Expression have also raised many concerns about the way the act is written and how it will limit journalists' ability to obtain information. Do you share their concerns?

[Peter Kent, Conservative, Thornhill, ON]

Are you looking to Senate amendments to improve Bill C-58 operationally for you?

[Caroline Maynard]

No. The complaints that we've received will have to be dealt with under the current act. Any new complaints received after Bill C-58 is passed will then be affected by the amendments. That's why I was saying that if nothing changes in the amendments, we will end up with three different types of investigation and complaint processes because the order-making power comes into effect a year after Bill C-58 will be approved. That means I'm going to have the old-fashioned complaint system with recommendations, a one-year new system with recommendations also; and in a year from now, then I would have the power to issue orders. This concern has been addressed already through a letter that I've sent to Mr. Brison, and I'm told they are looking into it. I've also sent a letter to Senator Ringuette, who is responsible for the bill. I've addressed those concerns with them.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Commissioner, for your appearance today.

Your predecessor composed an unprecedented and scathing evaluation of Bill C-58—a report card effectively with more fails than passes—and characterized it as regressive, in regard to access to information for Canadians. When you appeared before us, you were somewhat more discreet and said that anything in this bill that slows access or obstructs access is a concern and any area where accountability or access is increased represents progress.

In your opening remarks, you've mentioned the potential operational challenges should Bill C-58 be passed as it is today. It's in second reading in the Senate and a number of senators have indicated quite strongly that they will be making amendments to this legislation. Before you know the outcome of this piece of legislation, are some of your investigations or files on hold pending the legislation you will have to work with in the longer term?

[Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada]

Good morning and thank you, Mr. Chair and committee members.

I am pleased to appear before you today for the first time since my appointment as Information Commissioner of Canada.

Joining me are Layla Michaud, Deputy Commissioner of Investigations and Governance, and Gino Grondin, Deputy Commissioner of Legal Services and Public Affairs.

Let me first thank you for placing your confidence in me to carry out the duties of the Information Commissioner. It is an honour to serve Canadians in this role, and I look forward to the next seven years of working to ensure openness and transparency at the federal level.

My first two months on the job have been very busy and an interesting time of learning. I met with each and every employee at the office during my first two weeks. It did not take long for me to see that I have an excellent and experienced management team, as well as a very dedicated and professional staff. My meetings with employees and managers allowed me to gain a deeper understanding of the work done by my office. I also gained a greater appreciation of the 35 years of institutional knowledge that my office holds, and the strong foundation I have to build on.

In addition, I became more familiar with the challenges and the opportunities that the organization faces. This has allowed me to determine where to focus my efforts in the coming months and years.

I have four priorities that I would like to share with you.

My first priority is to address the inventory of complaints my office has yet to complete, while investigating new complaints as they arrive. I will also work with my team to improve operational efficiency and streamline the investigation process to reduce delays when possible.

My second priority will be to take steps to implement the anticipated amendments contained in Bill C-58. These proposed changes present potential operational challenges for my office. For example, if the bill is enacted as currently drafted, my office will have to manage, potentially for a number of years, three distinct complaint and investigation processes due to transition periods in the bill.

My third priority will be to ensure that the day-to-day work of my office is open and transparent. I will also stress these values in my interactions with institutions, members of Parliament, and Canadians. In addition, work is already under way to enhance and refresh my office's web and social media presence.

My goal is to make the complaint process simple and transparent for Canadians. I also want to provide more guidance to both complainants and institutions on the investigation process and the decisions taken, and more timely updates on access to information news and activities.

Finally, my team will work closely with institutions to help them meet their obligations under the Access to Information Act, and we'll address systemic issues. In the coming months, I intend to personally meet with access to information coordinators and the heads of a number of institutions to reinforce the importance of this collaborative approach and promote openness and accountability.

I will embrace every opportunity to collaborate with you and with Parliament as a whole, with institutions, and with other stakeholders, including the Privacy Commissioner. I will also emphasize the importance of sharing best practices. Canadians deserve to have institutions that are open by default and that make access a priority.

For the coming year, and just like the last six years, my office's main estimates are $11.4 million, and I have 93 approved full-time equivalents. Approximately 80% of this funding will go to deliver our investigations program. The other 20% will be dedicated to our corporate services, such as finance, information technology, and human resources.

As you likely know, the government announced $2.9 million in temporary funding for my office in the 2018 federal budget. I plan to use these funds for the resolution of complaints. In particular, I would bolster my investigations team for 2018-19.

I would fill vacant permanent positions and rehire the experienced consultants that my office engaged in past years. This would be good news for Canadians. My office would be able to complete more investigations in the coming year because of this additional funding.

Ideally, however, my office would be provided with permanent funding to allow me to permanently increase the size of my team and bring stability to the office. The volume of complaints my office receives is increasing. My team registered nearly 2,600 new files in the year that just ended on March 31. This is a 25% increase over 2016-17. As more and more Canadians submit requests under the act, the number of complaints will keep growing. I'm very much of the view that temporary funding and temporary staffing will not address the challenges my office faces. To meet this demand, my office needs more permanent funding.

I am pleased that the President of the Treasury Board announced last June that my office's resources will be increased on an ongoing basis in response to the adoption of Bill C-58. However, this funding will not be sufficient to meet the growing demands on my office and serve the needs of Canadians.

In closing, I wish to emphasize two aspects of the positive impact an increase in permanent funding would have for my office. First, as I've said, it would bring stability to the organization. I could hire enough employees to ensure the act is appropriately applied and respond to complaints in a timely manner. I could also retain these employees from year to year, providing needed continuity. Second, I could pursue innovative options for making the investigation process more efficient. I would like to capitalize on technology to enhance my office's service to Canadians.

That being said, thank you, again, for inviting me to appear today. I look forward to further opportunities to report on the progress I am making against my priorities and on my statutory mandate.

I would be pleased to take your questions.

[Peter Fragiskatos, Liberal, London North Centre, ON]

This is almost exactly the same as amendment LIB-22, however this applies to CSIS and CSE and, as I said before, it deals with any potential ambiguity that Bill C-58 brings into play. It addresses a drafting error, as the official mentioned.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

This amendment would clarify that the intelligence commissioner can receive information when evaluating ministerial decisions, subject to a privilege under the law of evidence. It seeks to address in particular any ambiguity relating to privileges under the law of evidence that would be posed by Bill C-58.

Department of Industry Act

[Mary Ng, Liberal, Markham—Thornhill, ON]

Mr. Speaker, this government is committed to being open and transparent about how taxpayer dollars are spent so that Canadians are better able to hold Parliament and the government accountable. In fact, we have recently introduced proactive disclosure requirements for grants and contributions that enhance transparency and oversight of public resources. These requirements set a higher bar for openness and transparency with regard to financial support provided by the government. These guidelines exceed many of the requirements laid out in this bill.

In June 2016, as part of the open government action plan, the Treasury Board of Canada Secretariat committed to increasing the transparency and usefulness of grants and contributions data. The initiative was spearheaded by a TBS-led committee of 37 participating departments, agencies, and crown corporations, known as the Committee on the Reporting of Grants and Contributions Awards. This was part of the first major renewal of the proactive disclosure requirements for grants and contributions since the policy first came into effect in 2006. As a result, starting on April 1, 2018, federal departments, agencies, and crown corporations have been following the new guidelines on the reporting of grants and contributions awards, which consist of three major themes.

First, the government will now have to disclose all grants and contributions, not just those over $25,000, as required previously. In fact, Innovation, Science and Economic Development Canada, the department targeted by this bill, has been following this practice for its grants and contributions since last January.

Second, all government grants and contributions information will be posted on the open.canada.ca platform rather than on each federal organization's website. This will give Canadians a simple, one-stop repository that will better enable them to oversee how their government is using public resources.

Third, the amount of information to be disclosed has been dramatically increased. Previously, each grant or contribution disclosure contained basic identifying information, including the value of the award, the name and location of the recipient, and limited information on the purpose of the funding. Now the government will publish a much more robust amount of information for each disclosure. This includes a more comprehensive section on the purpose of the award, the expected outcomes, and information on the recipient.

In addition, if passed, these reporting requirements would be strengthened and modernized through Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, which is currently being reviewed by the Senate. Bill C-58 would create a legislated requirement for the proactive publication of grants and contributions aligned with the new guidelines I just explained.

In seeking to legislate these requirements, rather than enacting them through policy, the government is looking to enhance the accountability and transparency of federal institutions to promote an open and democratic society and enable public debate on the conduct of those institutions.

As I have just shown, the current proactive disclosure requirements and proposed legislative changes through Bill C-58 would provide Canadians with robust oversight of public resources. Importantly, this would be done, unlike with the proposed bill, without compromising the competitive position of individual firms.

Bill C-396 would require private businesses and organizations to release sensitive commercial information, potentially compromising their competitiveness and market position. This bill would effectively obligate the government to publish the commercially sensitive and confidential information of private Canadian businesses, information that could potentially be used by a competitor, domestic or foreign, to undermine the competitive position of Canadian companies in the global innovation economy. This would be of particular concern to smaller, privately owned businesses that are not already required to publicly report things like revenues and expenditures in the same way publicly traded companies are.

The Government of Canada supports firms looking to scale up, expand into new markets, and develop technologies that support a modern, innovation economy.

The government's support for innovators and entrepreneurs is essential to achieving the goals set out in the innovation and skills plan to build an economy that works for everyone, an economy where Canadians have access to high-quality jobs and where Canadian businesses are well placed to compete in a rapidly evolving and competitive global marketplace.

Despite what the member opposite who has tabled this bill claims about this kind of support, the government is not in the business of corporate welfare. Rather, the government's support for innovative projects and collaborations helps Canadian firms enhance research and development activities, which benefits Canadians and Canada by generating investment, developing new technologies, and enhancing Canadian innovation capacity and expertise.

From the development of new clean technologies to the scaling up of small businesses, the government supports entrepreneurs and researchers working in various sectors of the economy who demonstrate the potential to drive forward Canada's innovation economy. The government will continue to support cutting-edge research that drives innovation and the development of new products and services for global consumers.

This is just one of the many ways the Government of Canada is working toward creating a competitive business environment that will benefit all Canadians and also attract investment. We have made significant strides in advancing this ambitious plan to strengthen the middle class, create jobs, and ensure a clean and inclusive future for all Canadians.

Just recently, we successfully announced the selection of five innovation superclusters. Small and medium-sized enterprises, large companies, academic institutions, and not-for-profit organizations will work together to advance Canada's technological capabilities.

We are also simplifying the way we support innovators with the creation of Innovation Canada to serve as a single point of contact for entrepreneurs looking to grow their businesses and as a gateway to government programs and services. The government provides a broad level of support to businesses looking to scale up, expand into new markets, and develop technologies to grow an innovation economy.

Governments should not be compromising sensitive commercial information that would undermine the competitiveness of those firms or Canada's attractiveness as a place to invest. The new, proactive disclosure requirements the government has put in place already strengthen the oversight of the use of public resources without creating a disincentive for businesses to get the help they need to benefit Canadians.

Bill C-396 would impede the government's efforts to better support innovation and entrepreneurship in Canada. Strong collaboration between ISED and the business community is essential to successfully drive forth the innovation and skills plan, create jobs, and improve the standard of living for all Canadians.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Sure. The amendment clarifies that, when investigating complaints, the review agency has access to information that is subject to common law privileges under the law of evidence not otherwise named, such as police informer privilege. The intent was always for the review agency, again, to access this class of information, but making this explicit removes any ambiguity.

Finally, Bill C-58 makes explicit reference to privileges under the law of evidence. This raised the possibility that the absence of such language from Bill C-59 could be interpreted as suggesting a lack of access. This avoids that risk by making the review agency's access clear in legislation.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

This amendment would clarify that, when conducting reviews, the NSIRA has access to all information except cabinet confidences. That would include information that is subject to common law privileges under the law of evidence, such as police and former privilege. The intent was always for the agency to access this information, but making it more explicit removes any potential for disputes should they arise in the future.

Finally, Bill C-58 makes explicit reference to privileges under the law of evidence and it raises the possibility that the absence of such language from this bill, Bill C-59, could be interpreted as suggesting a lack of access. As such, the need to make the review agency's access clear is here with this amendment.

Access to Information

[Kim Rudd, Liberal, Northumberland—Peterborough South, ON]

Mr. Speaker, as I said, we are proud to be the first government in over 30 years to make substantial improvements to the Access to Information Act. We understand that more must be done, which is why Bill C-58 includes a mandatory review of the act every five years, the first review beginning no later than one year after the bill receives royal assent.

Let us be clear, Bill C-58, for the first time in 34 years, gives the Information Commissioner order-making powers. That is an advancement. For the first time ever, the act applies to the minister's offices and to the PMO. That is an advancement. For the first time ever, the act applies to 240 federal entities from the courts to the ports. That is also an advancement.

[Kim Rudd, Liberal, Parliamentary Secretary to the Minister of Natural Resources]

Mr. Speaker, I would like to thank my hon. colleague for this opportunity to speak to Bill C-58.

Bill C-58 is guided by the principle that government information belongs to the people it serves. It advances the original intent of the act in a way that reflects today's technologies, policies, and legislation. It does this by kicking off a progressive, ongoing renewal of the AT system, one that will protect Canadians' right of access to government information well into the future. It does this by adding a new part of the act relating to proactive disclosure, one that puts into practice the idea of “open by default”.

The proactive disclosure system will apply to more than 240 departments, agencies, and crown corporations, including the Prime Minister's Office and ministers' offices, senators and members of Parliament, institutions that support Parliament, administrative institutions that support the courts, and over 1,100 judges of the superior courts.

We will also be putting into law the proactive publication of information that is known to be of high interest to Canadians, information that provides greater transparency and accountability for the use of public funds. These include travel and hospitality expenses for ministers and their staff, and senior officials across government. I was happy to hear that the member was talking about the concerns her constituency has. I am sure they will be happy to know that finally the NDP joined our government in the proactive disclosure of expenses. It took a while but we are happy they are on board with us.

Contracts over $10,000, and all contracts of MPs and senators will also be included, as well as all grants and contributions over $25,000; mandate letters and revised mandate letters; briefing packages for new ministers and deputy ministers; lists of briefing notes for the minister or deputy minister; and the briefing binders prepared for question period and parliamentary committee appearances. Departments will also regularly review the information being requested under the act to help us understand and increase the kinds of information that could be proactively disclosed.

We will also strengthen the request-based side of the system by developing a guide to provide requesters with clear explanations for exemptions and exclusions, investing in tools to make processing information requests more efficient, allowing federal institutions with the same minister to share request processing services for greater efficiency, and increasing government training to get common and consistent interpretation and application of the ATI rules.

We are also following the guidance of the Standing Committee on Government Operations and Estimates. We are moving to help government institutions weed out bad faith requests that put a significant strain on the system. By tying up government resources, such vexatious requests can interfere with an institution's ability to do its other work and to respond to other requests. We need to get this right and recognize that while this new tool is needed to significantly improve the system, everything from sound policy to training to proper oversight must be done to prevent its abuse.

In addition, the proposed legislation gives the Information Commissioner new powers, including the power to order the release of government records. This is an important advancement that was first recommended by a parliamentary committee studying the Access to Information Act in 1987. 0ur government is acting on it and Bill C-58 will change the commissioner's role from an ombudsperson to an authority with the power to order the release of government records.

After 34 years, Canada's ATI system needs updating—

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I am here today to talk about a question I asked last year on Bill C-58.

Just so the citizens of North Island—Powell River, who I am proud to represent, know what we are talking about, I am going to repeat the question. The minister keeps repeating that his government is the first in 30 years to make improvements to access to information. However, the Information Commissioner was very clear when she said that the Liberals' Bill C-58 is regressive and that the status quo would be better than what they are proposing, meaning that Stephen Harper's government was more open and accountable than the current government. Canadians were promised more accountability and transparency. Will the government work with us to help it actually keep that election promise?

This is a very important question. The constituents I talked to across my riding spoke passionately about their concerns around Bill C-51 from the last government, and about wanting to make sure things were transparent. The President of the Treasury Board said that we are reaching a new bar, and this is absolutely not the truth. It is important we remember who the expert is in this, and that is the Information Commissioner, who said, “I would much prefer to keep the status quo.”

This is incredibly important to my constituents. This is about the transparency of government. It is about making sure information is accessible. We know so many issues have come to light because Canadians, journalists, and NGOs use access to information to ask important questions that deserve answers. I do not understand why the government created a bill that really just blocks this.

Let us look at the facts. Residential school survivors fighting the government for decades for acknowledgement of the terrible and horrific abuse they faced, the reality that type 1 diabetes in Canada is now being rejected, the under-reporting of sexual assaults in Canada, Afghan detainees and those horrendous stories we heard, these were all discovered by the access to information that this bill totally erases. That is horrendous in this day and age.

One of the most concerning things for me is the fact that the bill talks about people who may be vexatious. What may appear to the government as vexatious may be of the utmost interest for Canadians. Who gets to decide what that is? How do Canadians appeal the decision by a department? This is really important. I know the people of North Island—Powell River are very concerned. They want to know we have information and have access to it, and that journalists have access to it, so that we can learn what is happening in this country. This completely bars the way. We really need to take a moment to reflect on that.

At this point, the bill has passed through the House, but this is leading to something that will be an ever-growing concern. When the government talks about increased transparency and when it says that the PM's office can be talked to now and people can ask for information, that is simply not true. When the Information Commissioner is saying that what we have now, which was in much need of change, is better than what is being proposed, all Canadians need to stand up and take notice of what is happening.

That is why I am here today, and I think we all must focus on this. Whoever is in government has tremendous power. It must be held in check. That is what democracy is all about.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

I want to go back to the issue raised by your predecessor, the concern about the ability to deny access to information based on the vagueness of requests. That has a particular implication for indigenous communities doing research for claims. We just had a case where a document that was nearly 100 years old, relating to the treatment of Indian children in a tuberculosis hospital, was denied. My concern is that the crown is always the defendant in dealing with any of these hearings for indigenous justice. The farther back you go in Indian Affairs, the more of a black hole it is, which is why many of the documents are more vague.

How do we ensure that indigenous justice is maintained in the application of Bill C-58, if people are researching historic documents where they might not know the exact name of the document and they're having to do fishing expeditions because they're not sure where the evidence is?