Information & Ethics Committee on Dec. 12th, 2006

[The Chair, Liberal, Tom Wappel]

I call the meeting to order.

Today we are considering, pursuant to Standing Orders 110 and 111, the certificate of nomination of Robert Marleau to the position of Information Commissioner, which was referred to our committee on December 5, 2006.

I want to remind committee members that there is an elaborate procedure set out in the rules for us to examine nominees for officers of Parliament, and that's why Mr. Marleau is before us.

I want to welcome Mr. Marleau, who was the Clerk of the House of Commons when I was first elected back in November of 1988, and he's the gentleman who swore me in as a member of Parliament.

[Mike Wallace, Conservative, Burlington, ON]

So you owe him.

[The Chair, Liberal, Tom Wappel]

I owe him.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Tom Wappel]

So what goes around, comes around.

We're very pleased to see you here, Mr. Marleau.

I understand you have a brief opening statement. Please go ahead.

[Robert Marleau, Nominee for the position of Information Commissioner, As an Individual]

Thank you, Mr. Chairman.

Thank you, Mr. Chairman. It is a rare privilege and an honour for me to be here this morning. I have a brief opening statement. I will spare you my biography and my career path, as I understand that the members have been provided copies of my curriculum vitae in both official languages.

Let me begin by addressing the reasons why I have agreed to stand as a candidate for the post of Information Commissioner of Canada.

I won't pretend for a minute to be an expert in matters of access to information. This post is an important component of the Canadian modern governance model and it goes to the very essence of our form of democracy. The Information Commissioner is first and foremost an agent of Parliament and there lies my interest in the position.

Agents of Parliament are an extension of Parliament itself. They're given a special trust to oversee government and report back to Parliament with findings and recommendations.

As a former officer of Parliament, I was frequently in contact and interacted with many agents of Parliament. As a young committee clerk, I watched the former Commissioner of Official Languages, Keith Spicer, defend his estimates before my committee in this very room.

Keith Spicer set the bar so high on the quality of reports to Parliament that I don't believe it's been reached again by any agents of Parliament since his tenure.

In the 1973 minority Parliament, as clerk of the special committee on electoral expenses, I worked by the side of the former Chief Electoral Officer, Jean-Marc Hamel. In my view, Monsieur Hamel set the standard of ethical conduct for parliamentary agents and had a profound influence on my own comportment and career.

Later, as Clerk of the House, I served on the executive of the Association of Heads of Small Agencies with John Grace, a former Information Commissioner. I worked to advance the understanding of the principles of independence and the autonomy of agents of Parliament, in particular with the central agencies.

In 2003, I briefly interrupted my retirement when I accepted to serve as Interim Privacy Commissioner, after the resignation of George Radwanski. I worked diligently with the Auditor General, the Public Service Commission and the Standing Committee on Government Operations to restore the trust of Canadians and the trust of the Canadian Parliament in that office.

I believe that in my short stay there, I accomplished what I set out to do in terms of the renewal of that office. I also dealt with some major privacy issues such as the National ID card proposal and the problem of surveillance cameras in public places.

More recently, on behalf of the Treasury Board—and I know your committee knows something about this—I was the architect of a pilot project for an alternative process for financing the big five agents of Parliament. I negotiated a framework agreement between the Treasury Board Secretariat, the Chief Electoral Officer, the Auditor General, the Information Commissioner, the Official Languages Commissioner, and the Privacy Commissioner. That pilot project is now in its second-year cycle, and hopefully it will lead to a more permanent process that will have parliamentarians continue to play an active role in the analysis of the financing of these agents of Parliament.

In retirement, I have served on the panel of external advisers to the Auditor General and on the external audit committee of the President of the Public Service Commission.

On the international side, I'm the volunteer chair of the board of directors of the Parliamentary Centre, an NGO that fosters democratic and parliamentary development in failed states and developing countries.

In a recent speech I gave to the Public Service Commission annual employee forum, I addressed the role of parliamentary agents in the accountability loop of our style of parliamentary government. I reminded them that in order to preserve and maintain their statutory independence, their first allegiance must be to Parliament, their second allegiance must be to Parliament, and their third allegiance must be to Parliament. I also underlined that while the Canadian Parliament has indeed recently reaffirmed the Public Service Commission's mandate to guarantee a non-partisan, competent public service recruited on the basis of merit, they should not forget that they are themselves accountable to Parliament, not only for the outcomes of their work but also for their ethical conduct and the stewardship of moneys voted to them. When Parliament grants an agent of Parliament a trust on behalf of all Canadians, the very least Parliament deserves to receive in return is leadership that it can trust.

When I left the public service after some 32 years, I sincerely thought it was for good. When I was invited to consider this position, I was asked to not say no at the outset, but to give it serious consideration. Why would I leave the calm comfort of an active retirement life with my spouse and family, you may ask? That is the question I had to ask of myself.

Simply put, after discussion with my wife, we decided it was basically the right thing to do. What I have to offer is parliamentary experience, process and procedure expertise and sound management leadership abilities. I confess that I have a bias against the status quo when it comes to management. If confirmed, one of my priorities will be to assess the management structure and practices of the Commission, to satisfy myself that Canadians and Parliament are getting good value.

As an ombudsman and mediator, I'm primarily an optimist. I usually see the glass as half full rather than half empty. My style is to find common ground and work on agreement from there. I can tell you that I have and will have a bias against going to court. It usually costs the taxpayer a lot of money and the outcomes are typically unpredictable. The former commissioner stated before this committee last fall that the Information Commission barely sees 10% of access requests through the complaints process. That leads me to think that the system is not that badly broken if somehow 90% of requests are not subject to complaints. That doesn't mean there isn't room for improvement.

The Information Commissioner must fiercely protect his independence from government, but at the same time, he can only be effective in that role if a civil and substantive dialogue is sustained with the agencies and departments he oversees. Nevertheless, Canadians have rights under the ATIA and they deserve the best service the commission can deliver with the resources granted by Parliament. Despite my reluctance to go to court, when citizens' fundamental rights are at risk and mediation has failed, then the commissioner has no choice but to aggressively pursue the matter before the appropriate tribunal, including the Supreme Court of Canada.

On the advocacy side, I want to state for the record that to push for more comprehensive access to information in order to increase government transparency and accountability is an inherent part of the Commissioner's role. This was unanimously acknowledged during debate on second reading of the original bill introduced in 1981. Unfortunately, all of the former information commissioners have expressed frustration over the fact that successive past governments have only committed to more study and more consultation, rather than to meaningful reform of the 1983 legislation.

I may be overly optimistic in expecting that under my watch, the Act will be significantly amended to strengthen its provisions and enhance its impact. If confirmed in the post, I will devote most of my efforts to that goal.

However, the commissioner is not the legislator, and at the end of the day, despite the commissioner's best advice, it is Parliament, in its wisdom, that will determine what kind of access to information regime Canadians enjoy. The Information Commissioner remains a servant of Parliament, and through the legislation he is an extension of Parliament's authority. I believe that Parliament has to be seen to be the first champion of access to information.

Honourable members, may I suggest that you simply cannot delegate that responsibility to one individual and expect that the government of the day will straight away lose its innate reflex to avoid transparency. You must stay ever attentive, react to the commissioner's recommendation, and keep the pressure on the governments to be even more transparent.

With your support, I believe I can advance the cause of open government by tenacious, focused, and timely interventions. Those who doubt my resolve need only revisit my short tenure as Privacy Commissioner. Those who seek proof of my independence of government perhaps need only review my career as Clerk of the House of Commons.

Thank you, Mr. Chairman.

I am in your hands.

[The Chair, Liberal, Tom Wappel]

Thank you very much, Mr. Marleau. For a person who was in retirement, it's amazing how active your retirement life was.

We do have questions, so we'll start with Mr. Peterson. This is a seven-minute round that doesn't have to take seven minutes.

[Jim Peterson, Liberal, Willowdale, ON]

Thank you.

I've known Mr. Marleau for more than 26 years, and I think this is the best thing--some more partisan than I would say the only good thing--this government has done in its 10 months in office.

So congratulations.

I will turn the rest of my time over to my colleague, Mr. Zed.

[Paul Zed, Liberal, Saint John, NB]

I have not known Mr. Marleau quite as long as Mr. Peterson, but since 1993. I have to say that he really is a Canadian leader. He's an outstanding historian, a civil servant, a public servant in every sense of the word, a servant of the people. He's a consensus builder. I too would pass on my congratulations to the government on an outstanding appointment, should it be confirmed by this committee. I don't have any further questions.

Thank you.

[The Chair, Liberal, Tom Wappel]

I want the committee to know that we've had two Liberal questioners in under a minute.

Mr. Dhaliwal.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you, Mr. Chair.

Thank you, Mr. Marleau, for coming here. I haven't known you that long either, but I can certainly tell you that after my university education, if I have seriously and sincerely read something, it is the book by you.

I would like to echo the comments made by my colleagues that this is one of the best steps this government has taken, to appoint such an intelligent and ingenious fellow with your capabilities who has had outstanding service to the House here as well.

Congratulations, and welcome.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Dhaliwal.

Madame Lavallée.

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

Good day, sir.

I'd like to add my voice to those who are singing your praises. Circumstances are such that I have not known you as long as Mr. Peterson, but your reputation precedes you everywhere, including here in this committee.

When the members of the Bloc Québécois learned that the Conservative government has selected you as a nominee for this post, there were no concerns or doubts on their part. We feel that a great Clerk of Parliament such as yourself would make a very fine information commissioner.

Thank you.

[The Chair, Liberal, Tom Wappel]

Merci, Madame.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Mr. Marleau, I'm pleased to see the tone of your comments today. You used the word “champion”, and I firmly believe the Information Commissioner has to be more than an administrator. He or she has to be a proactive advocate. You found, I suppose, in the original debate around the original bill that the notion of being an advocate isn't in any way contradictory to your appointment, but that's what we've been lacking.

A lot of us who have been at this for a while have been so frustrated and let down time and time again by successive governments: first the Liberals, now the Conservatives. The NDP has never let them down on access to information. We're consistent.

But this act needs opening up. I'm fond of using the term that freedom of information is the oxygen democracy breathes, and you can't overstate how critical it is.

So I appreciate the tone of your introductory remarks.

But having said that, I want to talk to you about the process. We've just passed Bill C-2, and we're about to give it royal assent today, I believe. When the government introduced Bill C-2 they said they would act as if the terms and conditions of Bill C-2 were already in effect, that they would stipulate themselves to this higher standard of accountability even though the bill hadn't passed yet. It was back in April, and it has a whole section on the public appointments process—in other words, getting patronage out of politics, etc.

I am by no means trying to infer that your appointment has anything to do with patronage, but if we're going to stipulate ourselves to a higher standard of process, why did it not apply to your arriving here today? What do you think of the process that nominated you? Is it in compliance with the spirit of this new process we're about to ratify today? What would you recommend as an improvement to that nomination process to make it more open and transparent in the spirit of this bill that we've all worked on?

[The Chair, Liberal, Tom Wappel]

Mr. Marleau, before you answer, I have a question.

Mr. Martin, you were actively involved in Bill C-2, far more than I. Could you just refresh us as to what part of Bill C-2 dealt with the appointment of officers of Parliament and how the process is going to be different than it has been, or can you remember?

[Pat Martin, NDP, Winnipeg Centre, MB]

The public appointments process strikes a whole new public appointments commission that would deal with all GIC appointments to make sure they're merit-based. It would have a posting process to be able to canvass the community to make sure people applied or were notified that this opening was available. It's geared toward eliminating patronage and it's geared to the highest standard.

[The Chair, Liberal, Tom Wappel]

Okay, thank you.

Mr. Marleau.

[Robert Marleau]

Thank you, Mr. Martin, for your question.

I'd like to thank the previous members for their kind comments, although I'm afraid I can't join them in some of the congratulations for the other side.

To speak to your question, Mr. Martin, the process under the statute is that the government, the GIC, nominates a person under the existing statute, and both the House and the Senate have to ratify that appointment. I understand that is the process that was followed.

In terms of Bill C-2, I remember reading last spring, when I appeared before Mr. Tilson's committee on parliamentary matters, that there was an attempt to appoint a head commissioner and it failed or was postponed. My selection was not part of a similar process. I was simply telephoned and asked to seriously consider this position, which I did and agreed that my name go forward.

[Pat Martin, NDP, Winnipeg Centre, MB]

Where did that phone call come from?

[Robert Marleau]

It came from the Privy Council Office, from the associate secretary of the cabinet on behalf of the Prime Minister.

[Pat Martin, NDP, Winnipeg Centre, MB]

Just like the old days.

[Jim Peterson, Liberal, Willowdale, ON]

Boy, it really works well, I have to admit.

[Pat Martin, NDP, Winnipeg Centre, MB]

Yes, single-desk service there, a Rolodex and a telephone call from the PCO.

[The Chair, Liberal, Tom Wappel]

Mr. Martin, just for your information, Kristen says it's her understanding that there was a brief advertisement posted, prior to the call being made. I presume prior to the call being made—