Bill C-2 (39th Parliament, 1st Session) Committee on May 30th, 2006

[The Chair, Conservative, David Tilson]

Mr. Tromp.

[Stanley Tromp]

Thank you.

Our group is not arguing that the substance of cabinet deliberations should be made public, but the Information Commissioner should be allowed to review these records to see if they've been properly classified or if they lie outside that. As in most Canadian provinces, cabinet documents are not excluded from the Information Commissioner's review, and that's what we're seeking.

[The Chair, Conservative, David Tilson]

Ms. Kothawala, Mr. Gollob, Mr. Rosenberg, and Mr. Tromp, thank you very much for coming. Thank you.

We'll break for a few minutes.

[The Chair, Conservative, David Tilson]

We will continue.

We have two individuals. I guess everybody knows Mr. Ken Rubin, and we have David McKie, of the Canadian Broadcasting Corporation.

Welcome to both of you. You each have a few moments to make some introductory comments before questions from the committee. Welcome.

Mr. Rubin.

[Ken Rubin, As an Individual]

Thank you.

I have spent my adult life--40 years--as an independent watchdog monitoring Ottawa. It has meant uncovering many hundreds of secret activities engaged in by Ottawa. It has included everything from the politics behind Canada's Food Guide, which we put on our fridges, to the questionable practices and funding in the multi-billion-dollar technology partnerships program. I've had to go to court to try to get, among other things, airline safety and drug inspection reports.

I've also appeared before many parliamentary committees seeking a more accountable Ottawa since 1979. One such intervention helped in the passage of the only progressive amendment to the Access to Information Act, which created penalties for record tampering in Ottawa.

The Accountability Act, as I see it, promises much but delivers too little. I'll briefly outline three basic flaws in Bill C-2, and then offer some suggestions for improvement.

First, Bill C-2 extends, rather than curbs, the culture of entitlement in Ottawa. It caters to powerful interests. It expands, rather than curtails, the unaccountable central powers that the Prime Minister and cabinet hold. That includes maintaining the Prime Minister's grip on the appointment selection process and increasing the number of prime ministerial, PMO, and cabinet records excluded from public access. This act expands everything in the wrong direction.

Deputy ministers and deputy heads, as well, get more power and money. Huge empires are going to be created under this bill. They become accounting officers, managers of more audits, arbiters of departmental ethical conduct, and gatekeepers for departmental disclosures. The bill also adds a new, expensive, and powerful CEO crown corporation category to the growing management ranks, and I can assure you that they've already started.

Bill C-2 makes special secrecy deals for certain crown corporations like EDC, Canada Post, and AECL. This signals that Ottawa is open to having hundreds of other government agencies live by weaker accountability standards. Certainly the courts will look at it that way too--I've been in front of courts many times--as will hundreds of outside corporations doing business with Ottawa, which will also want to be less accountable.

In addition, lobbyists, who were the big winners in this act, get greater influence in Ottawa, not less, and a mandate to largely continue their activities in secret.

Some federal agencies are ignored by this bill, such as the military and security intelligence, which are badly in need of oversight and greater accountability.

The second flaw--I'm trying to analyze what's wrong with this bill, because I want to right it--is that it puts in place a weak and secretive system of review and auditing and places transparency on the endangered list. Various parliamentary officers are given ineffective oversight powers to check abuses. The scope of what parliamentary officers can review is limited, as some key government operations and records are placed well outside their mandates. They are also limited as to what they are allowed to report and say. With limited enforcement powers and no means provided for coordinated investigations, parliamentary officers end up being toothless.

Internal auditing reviews also become weaker and more secretive. Their terms of reference are firmly under management's control. Contracting practices are going to be made even more loosey-goosey because of looser rules and fast-tracking.

Drastically lowering the amount of public scrutiny that audits are subject to is not going to help. Much about the audit process is going to be made secret for up to 15 years. And yes, I was one of the people who got draft audits of the sponsorship reviews. Audits, remember, include matters vital to our safety, like airline and drug inspection reports. That's often overlooked.

The Auditor General's review powers are not really increased to follow the money. Sheila Fraser has told the committee that she doesn't want to do that, because in effect, to audit the corporate books, except in extreme cases, you need to get at the corporate books, and this act does not allow that. It's just for getting at government records.

I can go on about transparency, but I'll leave that until later.

The third and final flaw raises false expectations of better government performance and conduct because it sets limited goals. When it comes to spending, there are no spelled-out public service obligations set out in a purpose preamble section for the right to quality government programming and accountability.

Who is mandated under this act to audit and report on how well Ottawa is doing on alleviating income disparities, health and safety problems, and environmental degradation? These are management- and department-based conduct codes. They're not found in the statutes, and they are a mixed blessing because they're readily changeable, and therefore suspect.

Such managerial codes can handicap rather than help concerned employees in fully providing services to the public or coming forward when such efforts are being hampered.

The conduct service codes as well would do nothing to legally ensure that a proper record of decisions is kept. That's a real code; it's statutory. Nor would they advance the public's right to know immediately about health, safety, environmental, and consumer matters.

Besides its five-year internal reviews, the only probe of Bill C-2 is a one-time look at advertising and polling contracts. No provision is made for permanent, ongoing public parliamentary oversight, like that currently provided by this committee, of the bill's accountability standards and service performance promises.

It fails to set quality performance accountability objectives and standards, hasn't got that oversight, and doesn't link it to what we all think are very democratic rights and charter rights.

That's why, in a constructive fashion--and I have an earlier, longer submission--I've set out over a dozen areas for improving and amending these problem areas found not just in the access provisions but throughout the act. They include adding a purpose clause, which enshrines accountability standards and the public's right to know as part of the Canadian Charter of Rights; ensuring public access to the records of the Prime Minister and ministers, as well as Parliament; making the Public Appointments Commission an independent agency accountable to Parliament rather than an arm of the Prime Minister's Office; treating crown corporations no differently from any other agencies, and reducing rather than adding special exemptions and exclusions; broadening what the public knows about lobbyists' activities, government finances and contracts; releasing immediately audits on health, safety, environment, and consumer reports; regularly posting the exact salary and benefit information of public officials--I'm sure everybody would agree to that; following through on a commitment for a tougher Information Commissioner's office with binding order powers.

New ideas include open meetings. I'm not speaking about cabinet, but boards and commissions like the NCC should be required to hold public meetings. The Auditor General should hear and respond to complaints about government work and procedures. Make her office a little more democratic too.

There should be penalties for altering, withholding, and distorting government financial records; more coordination within accountability systems rather than empire-building; and joint investigations of such officers as the Auditor General and Information Commissioner.

And why not go international by setting up a centre for transparency, accountability, and anti-corruption here in Canada? And then, of course, you need the periodic review of the accountability standards by the designated parliamentary committee.

There are some modest reforms in this bill, I agree, but it doesn't go far enough to rein in Ottawa's mandarins and power structures. It doesn't hold them to account. It doesn't have conduct that is meant to be exceptional--and I've been waiting for this.

The answer doesn't lie, though, in rushing through another act. Sure, you guys should go ahead and do as much as you can, but if you're going to make officials more powerful, less reflective, and more able to retreat even further behind closed doors, why bother? Who needs yet more, rather than less, government waste and mistakes?

Consider my suggestions to reverse this, and make Ottawa accountable, transparent, compassionate, and credible, because that's what this government has to do.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Rubin.

Mr. McKie, go ahead, please.

[David McKie, CBC Investigative Unit, Canadian Broadcasting Corporation]

My name is David McKie. I'm a journalist with the award-winning investigative unit for CBC News. I'm here to speak for myself and by extension other journalists who use the federal Access to Information Act to help, I think, tell stories of public importance.

I'm also here as an educator, someone who teaches journalism students at Carleton University and elsewhere how to use the act, and as someone who has written about the act and ways to use it in a recently published book called Digging Deeper. I am not—I repeat, not—here as a representative of the CBC. That might disappoint some of you.

For the past several years I've been part of a team of journalists who have used this act to uncover important facts. To name a few, there's the fact that a clinical trial at the Children's Hospital of Eastern Ontario in which a little boy died was never sanctioned by Health Canada—Anne MacLellan was the health minister at the time—or the fact that Health Canada's own adverse drug reaction database showed that the number of children being harmed by prescription drugs had tripled since 1997, and without the department's knowledge; the fact that about a third of this country's seniors are on prescription drugs they are not supposed to be on, either because those drugs are dangerous or because there are safer alternatives, and many of those seniors become statistics in Health Canada's adverse drug reaction database, which is now online.

These stories and many more we've told would not be possible without the Access to Information Act. Even at that, we have to fight hard to get the material we did in the cases I've just mentioned. It took years to obtain Health Canada's adverse drug reaction database. In the case of the clinical trials, it took us two attempts to obtain the proper documentation.

If we step back to take a broader look at this act's application, we need look no further than stories such as the infamous “Shawinigate” affair and the trouble former Prime Minister Jean Chrétien found himself in. And of course, we all know about the ad scandal, one of the reasons for our present political configuration and one of the key reasons we're all sitting in this room talking about the need for more accountability.

I should also point out that it's not only journalists who have managed to use this act. Dare I say, politicians too have used it to great effect. All parties have managed to ferret out information to in some cases embarrass the government and more importantly to outline shortcomings in public policy.

My colleague Ken Rubin has already explained some of his concerns, and I share them; we talked about them before this presentation. What troubles me even more is that the flow of information to which we have the legal right is in some cases slowing to a trickle.

Just yesterday I filed two more complaints with the information commissioner's office, one against the Department of National Defence for fees ranging in the thousands of dollars, and a second against Foreign Affairs and International Trade for denying me a document—David Emerson's mandate letter—that I think should be a matter of public record; why not? We are also locked in another battle with Health Canada over its adverse drug reaction database, and that battle may end up in federal court, costing everyone involved far too much time and money.

Last month I edited a story in the Canadian journalists' association Media Magazine from a former master's student out at the journalism school at U.B.C, who recounted the frustrations and threats—yes, threats—she endured while trying to extract information from Transport Canada on the exemptions they were employing to deny journalists information after the September 11 attacks in New York, Washington, and Pennsylvania. I have a copy of that article, if anyone's interested in reading it, and I suggest you do, because it's disturbing.

So we face a lot of obstacles without having to endure new ones. My concern is that in many instances departments are not respecting the spirit of the act; instead, officials choose to take narrow interpretations and apply liberal exemptions, such as advice to the minister or security concerns, to keep information secret. This means that in many instances it's becoming increasingly difficult for us to do stories such as on safety at airports, problems certain segments of the population may be having with prescription drugs, or policies our correctional services are using to deal with dangerous offenders—an issue this government is concerned about. These stories are not being told, and they should be.

So I applaud the initiatives that would bring crown corporations and foundations into the act's sphere, including mine.

I think the spirit behind the legislation, one that promotes openness and accountability, is one that should also be applauded. I would just urge you to watch the loopholes, the vague language, the addition of exemptions, and other potential obstacles that could become roadblocks. Ken has talked about them.

I would also urge you to argue for more funding--and this is important--more funding, so departments can adequately staff their ATIP offices. Too frequently, I deal with harried bureaucrats crumbling under the weight of requests. This results in lengthy delays. You can implement all the reforms you want, but if ATIP offices are understaffed, the information that needs to get out becomes stuck in the proverbial bottleneck. Information delayed is information denied.

Finally, I would ask you to act with some haste. I don't know how many stories I've done about efforts to study the act. Study, study, study, talk, talk, talk, and yet all that study has led to too few meaningful reforms for an act due for a shake-up. So you have a chance to make a difference, to correct what one former prime minister called the democratic deficit. An increasing number of countries are adopting their own access laws; Canada can and should be a model for openness and accountability.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. McKie, Mr. Rubin, you're two acknowledged authorities. We have some questions for you.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you both for being here and for what you have done for open government in the past. I think you both quite succinctly set out the very basic principles of open government with liberal access and limited and injury-tested exemptions.

Thank you, Mr. Rubin, for your larger brief, which has a lot of suggestions and commentary. I'm a little curious about your suggestion that we enshrine the right to access to information in the charter. I'm only hesitant about it because I suspect the complexity of having that occur. Did you have a specific route and a specific place where you would see that enshrined?

[Ken Rubin]

Yes. It would be in the purpose section. And having argued in court—I'm not a lawyer—where the public right to know is considered a quasi-constitutional matter, it's much better to go beyond statutory interpretation and enshrine it right in an act, because it gives the act a lot more clout with individuals who see clearly it's a right, and with the courts who have to interpret the act. Besides, article 2 talks about freedom of expression, and clearly in the modern sense the right to information is part of that.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Brian.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Access to information is the thrust of your presentation, Mr. McKie. There is less about access to information reform, obviously, at this committee than there is about general accountability.

Would you advise us--what I didn't get from your presentation--to proceed with some haste with respect to the omnibus bill in all other respects and end its minor implications for access to information? In the scheme of things, this bill is not about increased access to information only; it's about many other things.

[David McKie]

I realize that, but some of the things I have been talking about, such as greater funding for ATIP offices, can be done fairly quickly. No, I don't think everything has to move together. You can pull out things and send very clear signals. I remember when Ujjal Dosanjh was health minister. One of the first things he said to his officials was “I want you to release information as quickly as you can”, and that was a signal from the top. Those kinds of things are very easy to do--no problem, no bother.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Do you sense that's the direction of the new regime here? That officials from the top down, ministers down, are saying release the information quickly, to use your words?

[David McKie]

I would have expected that would be the case.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

But what's your answer?

[David McKie]

I don't know.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Okay.

[The Chair, Conservative, David Tilson]

Mr. Rubin.

[Ken Rubin]

I don't look upon the transparency section of this act as totally separate. Yes, it's clear it has gone toward greater secrecy and protection, but look at all the different sections, from part 1 to part 4, the whistle-blowing disclosure, contract disclosure.... I should put it the other way: it's usually exempting this stuff. Look at audits, look at any of the other areas of the act, and you'll run into subtle or not-so-subtle...like polls and when they can be released. You will run into a huge host of things that are definitely connected to transparency. You can't separate the two.

One of the easiest things would be--and you didn't need this complicated piece of legislation, which is cleverly crafted to give people more power, not more transparency--to put in schedule 1, for instance, under the Access to Information Act of crown corporations, which in part is in there, and if you didn't give them special access privileges in other clauses, you would have achieved their coverage. In that clause that says that for greater certainty, general administration would include travel and expenses, if you had said that for greater certainty, because it's before the courts now, the Prime Minister's and the ministers' records are covered, that's all you would have had to do. We would have had the interpretation cleared up.

I mean, there are things in this act that could be done properly. There are people behind the way this act was crafted who knew what they were doing, and there are people who don't deserve to be counted on in terms of making us a more compassionate and credible society with a government that acts on our behalf.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

I'm interested in both your views on Commissioner Reid's eight recommendations to us to consider for amendment and also the fact that he didn't include in there the order power he is opposed to. I'm wondering if you support the amendments that he has suggested and what you think about the order power.

[Ken Rubin]

It's fairly publicly known that I do not support all of Mr. Reid's suggestions. I believe in a public right to know act rather than simply an open government act. I don't think a public interest override act, having used it in the provinces, will achieve much. That is why--and I know Dave McKie will agree with me--proactive disclosure of environmental safety and health and consumer reports is what's really needed, a real disclosure that gets prior consent from parties, that negotiates between federal and provincial people and says we all want disclosure internationally.

What we don't want are things that don't put it forward. So when Mr. Reid does put it forward and gives one concrete obligation, a duty to document, I agree with that. But you need to have many other duties, not weasel words that say “reasonably expected to service the public”. No, no, no! We want right in the purpose clause a conduct code that says disclosure is a prime focus of the act and you have to honour that code, not that you have to reasonably, maybe, apply a secrecy code, which is what in essence it means if you take away the fine language.

[David McKie]

To pick up on that, to routinely disclose certain kinds of documents, inspection reports, detailed audits, or whatever the case may be, doesn't necessarily have to be tied up in this process. That can be done right away. It would go a long way to increasing transparency. And I think even more....

Pardon me.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

And taking pressure off the ATIP departments.

[David McKie]

Absolutely, which are literally crumbling under the weight of expectations.