Information & Ethics Committee on Dec. 12th, 2006

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Tilson.

Mr. Stanton.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, Mr. Chair.

And thank you to you, sir. Certainly your reputation precedes you in a very favourable way—not but that these glowing remarks from the other side might have on other occasions made this side somewhat nervous when we heard them. I would dispel any notions of the sort.

I have just a brief question, Mr. Marleau, continuing on the theme of access to information reform in particular. I wonder whether you've given some thought to and maybe could tell us what you think the role of the Information Commissioner should be in the process of looking at access to information reform, which this committee has in front of us at some point in time.

[Robert Marleau]

I think I telegraphed a little bit in my opening statement that I would like to begin discussions with the government as quickly as possible to see what common ground we could establish, and to deal with those issues where there is common ground from the commission's point of view, and then maybe focus on where there isn't common ground and how that situation could be improved.

I have read very quickly—actually I speed-read this morning—Mr. Toews' evidence before this committee last spring on the government's response to reform to access. There are issues there that need further discussion amongst yourselves. The solicitor-client privilege issue is one, and there's national security. But I think by entering early on into a dialogue about those issues, which are all on the table now—most of the issues are known—and maybe at least reporting back to this committee where there is common ground, once we've established that, we can work on the hard nuts to crack.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you.

That's all I have, Mr. Chair.

[The Chair, Liberal, Tom Wappel]

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

First of all, I have to tell you that some groups objected to the way in which the Conservative government announced your nomination for this post. I'm not sure exactly when that was, and that might be worth finding out. The fact remains that the position was posted for seven days on a website in July, raising the hopes of some persons who more than likely had no idea that at the same time, the government, more specifically, the Prime Minister's Office had offered the job to someone. As far as transparency goes, this process doesn't seem to fit this government's new ideology, and that's very unfortunate indeed.

Moreover, Mr. Marleau, a majority of committee members passed a motion—if you've read any minutes of our meetings, you will certainly have seen it—calling on the Minister of Justice to table new access to information legislation before Friday, December 15. Mr. Vic Toews told us—I have his testimony here and you can review it in its entirety if you wish, or I can show you where he said this specifically—that drafting access to information legislation is a fairly straightforward process that would take only a few days. We suggested that by all means he should draft this legislation because as you know—Mr. Martin could say more about this than me—the government has been thinking about reviewing this legislation for a decade now. Many suggestions have been made, many studies and reports done, and much thought given to this issue. Now, we're at the stage where the Minister of Justice must get off the pot—if you'll pardon the expression—and table a bill. It may not be the perfect bill, and we may need to twig it somewhat, but it's time for a concrete legislative measure that will be examined in the usual manner.

How would you feel about the minister introducing a bill by Friday?

[Robert Marleau]

Thank you, Madam.

I'll start by answering the first part of your question concerning the nomination process. In early September, when I wasn't interested in applying for the position, I saw a newspaper article containing a list of hypothetical candidates. Soon after, I left on a four-week trip to Europe. When I returned, there were no reports in the press. I received a telephone call on November 17 informing me that the position had yet to be filled. I was expected to turn down the offer, as I had done in the case of other offers. I was asked to give the matter some serious thought. Given that the Prime Minister was asking, I felt that it was the least I could do. Ultimately, I was flattered and honoured to accept the offer. It wasn't an easy decision for my spouse and I to make, but I accepted for no specific reason other than the one I gave you, namely that it seemed like the right thing to do.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

You understand, though, that this criticism was not being levelled at you.

[Robert Marleau]

Yes, I understand that, but you wanted to hear my comments on this matter. I received the call on November 17.

As for the second part of your question, I realize full well that in its report, the committee requested a response from the government before Friday, December 15.

I've read the testimony given by the minister and by Commissioner Reid. I understand the government saying that the matter needs to be studied further, that there was no consultation. The former commissioner, for his part, maintains that many consultations have taken place over the past 15 years and that it's clear what needs to be done. On the one hand, the government says that it can't estimate all costs, while on the other hand, people argue that costs are not that high and that a price cannot be put on transparency.

If confirmed, I will tackle this question by first saying that the past must be left behind and that we should forget about who was consulted, and who was not, and try to find some common ground for moving things forward and resolving differences.

I hope the government does bring in draft legislation because that is the very essence of the work that parliamentarians do. Studies are a more difficult task.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

There have been many studies.

[Robert Marleau]

I don't disagree. In 2002, I worked on the Delagrave Commission which also tabled a report to the House. My contribution was quite limited in that it was confined to parliamentary privilege.

Therefore, there has been the work of the Delagrave Commission, various reports by commissioners, the work done recently by Mr. Reid and now, the government's response to the committee's report. I think that everything is on the table. It's a matter of getting things in gear and of agreeing on what can be accomplished.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you.

[The Chair, Liberal, Tom Wappel]

Merci, Madame.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Marleau, as you know, you don't just need the confidence of this committee and both Houses; the Information Commissioner needs the confidence of the information community at large.

At least one well-known advocate, I suppose, is Mr. Darrell Evans. His comments in a Montreal newspaper stated that your bureaucratic background probably means you won't fight for new powers for the commissioner's office. He said that as a lifetime bureaucrat and an inside government guy, he is certain you would have a credibility problem.

These are pretty strong criticisms from a national figure in this information advocacy community. How do you respond to those kinds of questions?

[Robert Marleau]

I have no difficulty in responding. I don't know Mr. Evans; I have never met Mr. Evans. I would say that my knowledge of ATI will be on a steep curve in terms of acquisition. But to refer to a former Clerk of the House as a government insider demonstrates that there is some learning curve on the other side as well.

[Pat Martin, NDP, Winnipeg Centre, MB]

I don't disagree.

[Robert Marleau]

That being said, the principle is important. Apart from interacting with this committee and the executive, there is a whole community that believes in ATI and transparency. They see the difference it makes in their own constituencies.

I will work very hard with any of the advocates. I think I was very successful with the same advocacy groups on privacy in the very short time I was there. Let's just say that the previous Privacy Commissioner didn't have the best dialogue with his own constituencies in terms of advocacy. I did try to turn some of that around.

I'll apply the same style to these groups that I would apply to this committee or to specific matters of the executive. In terms of how to do that, I think it is by simply reaching out to them right away. No doubt, I'll get several calls for meetings. I'll be as available as I can make myself, and I'll work from there.

[Pat Martin, NDP, Winnipeg Centre, MB]

Having said that, with the former Information Commissioner, John Reid, the more activist he got, the more he fell out of favour with the ruling party, or the government, whichever it was. He produced a bill with his recommendations called the open government act.

It's logical to go to the Information Commissioner if you're looking for information about what needs to be done to improve the access regime. Have you looked at his proposed open government act? Given what you know about the Information Commissioner's office, do you concur that this would be a good starting point, for this committee at least?

[Robert Marleau]

I take it as a given, Mr. Martin, that it is the starting point for this committee, since the report that was filed in September with the House requests that it be the starting point. I assume that the committee has already taken it as the basis of discussion, and so will I. I've read the proposed act off the website of the Information Commissioner. It's difficult for me to say to you that I fully agree. Some of the issues are somewhat complex. I agree with the thrust, but not at any cost. To enhance transparency and open government is a good thing. I'd like to evaluate what some of the issues mean as well as the minister's discussion paper or testimony here. Again, I think there's a lot more common ground than was first acknowledged in moving this file forward.

[Pat Martin, NDP, Winnipeg Centre, MB]

I think the minister underestimates the pushback, though. Minister Toews I think is having the same problem Minister Cotler had. I don't think people realize the entrenched problem of secrecy within the senior bureaucratic level and the reluctance to shine the light of day on the operations of government now.

The Information Commissioner has the unique strength to be able to actually shake loose or shake free some of the senior bureaucrats. What ministers lack I think is the comprehensive background necessary to counter some of these arguments they face. Your role would have to be as champion in that regard, in the service of well-meaning ministers who have been stymied time and time again.

Vic Toews was part of the ad hoc committee that John Bryden put together to try to break this logjam of freedom of information. He himself played an active role in pushing the previous government in this regard. Are you willing to adopt that mantle? In your brief, you said you have to be a champion. Well, that will have to be an aggressive, activist champion, even if it means falling out of favour with the ruling party of the day.

[Robert Marleau]

I have some experience in falling out of favour with the ruling party, as Clerk of the House of Commons over the years that I occupied that post. Also, I have fallen out of favour with Her Majesty's loyal opposition from time to time. So I think it's a question of striking a balance. Yes, aggressive advocacy is required by the commissioner, but strategic aggressive advocacy I think is effective. To just go on the “Speakers Corner” and advocate transparency in government is one thing. Advocating it with a strategic intent of achieving something is what I would like to devise as a plan. Of course, this committee has to be part of it. As I said, you can't just delegate this to the commissioner. I wasn't trying to preach or sermonize to the committee with that comment. The power the commissioner has, even in his advocacy role, flows only from Parliament. Sure, the personality can probably add something to it, but it's your authority that the commissioner carries forward.

At the same time, because I've been an officer of Parliament, and still am as an honorary officer of the House, I cannot substitute myself for the legislator. If you decide to do something with the statute, at the end of the day that's a decision of Parliament, and as commissioner I have to live with it. I may not like it. I may even gently criticize it--not to the point of contempt, but certainly in the hope of keeping the file going.

I don't have a problem with taking on an aggressive championship-style role and falling out of favour with ministers or senior bureaucrats. I've been there before.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Marleau.

There are just a couple of questions from me.

First of all, the rules require you to give us a copy of your curriculum vitae, and you have done that. I'm just curious, what does DU stand for?

[Robert Marleau]

It stands for Doctor Universitatis, which is an honoris causa doctorate that I received from Ottawa University after I retired. I don't like to use the PhD designation. It took me 32 years to get a doctorate degree—

[Some hon. members]

Oh, oh!

[Robert Marleau]

—and the university authorizes me to put DU after my name. That's it.