Information & Ethics Committee on June 19th, 2006

[Vic Toews, Conservative, Provencher, MB]

Technically, it's Her Majesty, the Crown, that is the client.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Absolutely.

I don't think there's any question that a government, or a member of the Crown, or a minister of the Crown can seek legal opinion. That makes them clients.

My concern is that when the issue of solicitor-client privilege is raised in legal proceedings, lawyers can rant and rave that they have solicitor-client privilege, but it's the courts that decide whether there's solicitor-client privilege, not some lawyer who is trying to stick up for his or her client.

With both the existing section and the sections proposed by Commissioner Reid and his staff, the head of the government decides. That's rather a new concept, I think. I suppose, too, it's possible that if someone didn't like that, they could appeal to the Information Commissioner. I don't know. I'm not sure about that, but I assume there's an appeal process, and there could be an appeal. That's my first observation: that it's a strange process. For everybody else, the courts decide, yet in this particular legislation, old and proposed new, it's the head of a government institution that decides.

Secondly, I also find it strange that it's the head of the government that decides what's injurious to the interest of the Crown. I don't even know what that means. Who knows what that means? I don't know what it means. I'll bet you the head of a government institution doesn't know what it means.

Those are two comments, Minister. I don't know whether you have put your mind to that--maybe your colleagues have--and whether we could have your comment.

[Vic Toews, Conservative, Provencher, MB]

Certainly you've touched on two very important issues that are concerns arising out of the recommendations. Trying to add an injury test to the issue of solicitor-client privilege is, I would suggest, almost impossible to do.

The goal you're trying to achieve when it comes to solicitor-client privilege is absolute confidence with respect to the communications the solicitor provides to the client. To start second-guessing that privilege by saying it would apply only if there could be demonstrated injury to the government.... I don't know where you would begin to demonstrate injury to Her Majesty the Queen. Maybe we should say it that way. It is virtually impossible in this kind of context. It's the application of a test, which in certain circumstances does work; it simply doesn't apply here.

With respect to who makes that determination, let's take, for example, the case of cabinet confidences. When cabinet confidences are challenged, they do in fact go to judges, as I recall. You provide that material to the judge; the judge reviews that material and determines whether the information falls within a cabinet confidence or not.

In respect of the solicitor-client privilege, I'm not familiar with any law that allows judges to say, “Now, I want you as the lawyer to tell me everything you told your client, and I'll determine whether it should be solicitor-client privilege.” I can't remember a case. In fact, if there were such a case, I would think that the law societies of this country would be outraged that a judge would even ask that question. In my experience, a lawyer stands up in court and says, “That's solicitor-client privilege, and the only one who can waive that is my client.”

Maybe we're talking shades on the same point. All I want to emphasize is that what the Information Commissioner has recommended here is a very radical departure from a key principle that underlies our entire legal system.

[The Chair, Liberal, Tom Wappel]

Thank you.

You have one minute.

[Bruce Stanton, Conservative, Simcoe North, ON]

I'll do this quickly.

Thank you, Minister, for your comments and presentation today.

On this notion of cabinet confidences, I noticed in the discussion paper that you went so far as to suggest that this type of openness could in fact even be extended to MPs' offices. So regarding the whole spectre of opening up the departmental offices of ministers to access to information, you went a step further and said, well, if that was the case, then this could also extend to MPs' offices.

I wonder if you could comment on what the thinking is behind that. Is there a gap there that the Information Commissioner didn't address in his proposal, which you could speak to?

[Vic Toews, Conservative, Provencher, MB]

Without getting into too much detail, I would simply want to say that if one says the cabinet confidence should be opened, why shouldn't it also occur with respect to ordinary members of Parliament? Is it analogous? I'm not prepared to say that it's absolutely analogous, because there are differences between members of Parliament and specifically the executive or cabinet. But I don't think you would hesitate to say that if someone suggested that information you received in the course of making political or other decisions...it would compromise your ability to hear from people and come to those kinds of conclusions. I think you would agree.

If we agree that in the context of your making decisions on behalf of your constituents you would have to divulge sources or other types of personal information, then we have the same problem, perhaps magnified, at the cabinet level, when we start talking about that kind of disclosure of information. So I think it illustrates the problem, which you feel at a personal level, regarding what could happen at the cabinet level.

I have no problem, and I've been involved as a lawyer with those types of arguments about cabinet confidentiality. Lawyers on the other side of the case have said, well, those aren't really confidences. Those materials were all placed into envelopes, given to the judge, and the judge was the only one who saw them. I don't mind that kind of review.

I do have a problem with someone saying, demonstrate to us how this is going to be injurious, and if you can't, release the information. I simply don't know how you do it.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you.

[The Chair, Liberal, Tom Wappel]

We're now into the five-minute rounds.

Mr. Peterson.

[Jim Peterson, Liberal, Willowdale, ON]

I regret that the Information Commissioner is not here to be able to—

[Vic Toews, Conservative, Provencher, MB]

He will be here.

[Jim Peterson, Liberal, Willowdale, ON]

Yes, but you will not be here at the same time.

As I understand it, there are huge differences between what you are looking for and what he is looking for. I certainly share Mr. Martin's view that more study is very frustrating, as opposed to dealing with what the government feels is appropriate. This is not a partisan issue.

It would be a lot easier for the committee to work on this if we had an actual draft bill, imperfect as it may be. Certainly you would be the first to be able to point out to us where you had some possible hesitation and why you came down precisely where you did.

From my understanding, Mr. Chairman, these studies go right back to 2001, when Mr. Brison came up with some—

[The Chair, Liberal, Tom Wappel]

It was earlier.

[Jim Peterson, Liberal, Willowdale, ON]

Even earlier--and there's a certain amount of frustration when your predecessor asks for further studies.

It's my experience here that it's a lot easier to work with a concrete proposal. It doesn't mean the committee accepts everything. Maybe that's the way you want us to do it, Mr. Chairman--draft our own bill and critique it ourselves. I don't know.

I hope Mr. Reid or his people will also have an opportunity to ask you very precise questions, because they're living with this on a daily basis, and have for a long time. I'm not saying that his draft bill would have been perfect, but maybe we should work on it as our starting point, in order to get concrete in the way Mr. Martin is insisting we do.

We could certainly have the minister back for more precise comments on the exact wording, rather than us throwing these balls up and, as Mr. Martin says, trying to count angels on the head of a pin. We could be much more helpful by working in precisely that manner. Obviously that's not what the minister wants us to do, so I invite your comments.

[Vic Toews, Conservative, Provencher, MB]

So your suggestion is that you want to take the bill in hand, go through it, and make the recommendations that you feel are appropriate, or adopt the bill. It's certainly your right to do exactly that.

The discussion paper simply points out specific concerns we've had with it. You can take those comments for what they're worth, use the Information Commissioner's bill, and say, look, this is where we want to go. There's nothing in the mandate that's been given to you that would preclude you from doing exactly that.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chairman. I'm just going to follow up on the opposition's questions on this.

In the presentation you tabled with us on strengthening the act, if I do the counting correctly—I might be off by a bit—there are maybe 15 or so items that you've highlighted as issues that need to be addressed. They relate to the bill that was proposed, or the proposed changes the Information Commissioner put forward in his proposal. Is that not correct?

[Vic Toews, Conservative, Provencher, MB]

That's correct.

[Mike Wallace, Conservative, Burlington, ON]

So simply put, we're really not doing anything different from what was just suggested, except we may not have the legalese in front of us. Your suggestion is to take these 15 points, spread them over a few agendas, call witnesses on them from both sides of the fence, flesh them out, and feed them back to you. So when the bill comes back to us, discussion on those decisions would have already happened at the committee. Is that not a fair assessment of what we want to do?

[Vic Toews, Conservative, Provencher, MB]

I think so. We didn't want this aspect of the proposed legislation to muddy the other aspects. The other aspects were difficult enough to proceed with, but we felt that in this context not enough background work had been done.

You know what the specific legislative recommendations are. You know what our concerns are on this set of proposals. You can make the recommendations. How you choose to do it is really up to you. If there's an expeditious way of doing it, that's fine.

The suggestion that you're somehow starting from ground zero here is simply not accurate. I'm not here to quarrel with the committee. I want to see what information I can give you to at least let you know what the government is thinking about some specific issues.

[Mike Wallace, Conservative, Burlington, ON]

Obviously, I wasn't sure before, so I'm unclear. Mr. Martin's been working it on it for a number of years, by the sound of things. But did the actual open government proposal by the Information Commissioner ever get back to a committee of Parliament, or anything, for review before the House fell? Did it get some review?

[Vic Toews, Conservative, Provencher, MB]

There was no review in my time in Parliament, although I could be corrected by Mr. Martin.

[Mike Wallace, Conservative, Burlington, ON]

One other issue that I found interesting in my reading here--we've covered off a lot of it--is that if another government gives the okay, we should automatically release information that's been provided to us by other governments. Do we not send information to other countries, other governments, because we're concerned about confidentiality on their side? I don't need specific examples, but can you give me an idea of what kinds of things we are talking about?

[Vic Toews, Conservative, Provencher, MB]

If we're sharing security information, and that information is provided to us under an absolute guarantee of secrecy, we cannot simply divulge that information. The government that provided us with that information has a right, for whatever reason...because we don't know the entire security issues in that particular country. What may look relatively innocuous to us may in fact be damaging and detrimental to not only the government but to the safety and security of its citizens. So we honour that commitment.

Similarly, if we were to send information to another country because we needed to work on the issue of terrorism on a worldwide basis, for example, another government looking at that information might say, “How would this really harm anyone if we released it? Well, we don't know.” We have the information; they don't.

I would be very reluctant to ever give a government information that could potentially be released and come back to injure our national interests or the safety of our citizens. So I don't know how you even bring an injury test into this kind of a context without having extensive reviews of both countries' security information, which you'd never have access to.

[The Chair, Liberal, Tom Wappel]

Thank you.

Monsieur Laforest.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

In your opening remarks, you said at the outset that in the opinion of your department, it was important to protect democracy and that the bills being introduced sought to achieve this objective.

We know that one of the underlying reasons behind the introduction of Bill C-2 by the government is the fact that principles of democracy had been breached. The scandals that occurred in recent years resulted in court cases and even prison sentences. This bill is about the accountability of public servants and all officials generally. Another reason the government brought forward this bill had to do with issues surrounding access to information.

That is why I do not understand why Bill C-2 does not include genuine reform of access to information. I would like you to explain that for me. As you and a number of others said, this legislation dates back to 1983. Only a few minor changes have been made to it since that time.

As a result of all the scandals that have happened, a reform of this legislation would have been completely appropriate. Why did the government not reform the legislation as part of Bill C-2?