Information & Ethics Committee on June 19th, 2006

[John Reid]

If they're the same as the discussion paper, I have seen them; if there's a difference, I have not.

[Pat Martin, NDP, Winnipeg Centre, MB]

Yes, they essentially are.

I'm only introducing my remarks with that because the minister used this excuse as to why he didn't table a bill with us. By justification, he said there are 15 points even the Information Commissioner says need a lot more work, need further study, etc. So even though you weren't here for the presentation just made by the justice minister, your name did come up in his remarks, saying essentially that even the Information Commissioner agrees this committee should be studying these concerns further, and therefore we're really not ready to draft a bill.

What is your opinion of that point of view?

[John Reid]

When I first heard I had said that, I went back and looked at every transcript we had from this committee and I was unable to find any point where I had actually said that. What I did say was that we should proceed apace. My experience as a former member of Parliament is that as a group we feel most comfortable dealing with the text of legislation rather than discussion papers, because then we can look at what the legislation actually is and we can test what it will do based on that.

Second, it's always very difficult to deal with amending legislation if you don't understand the legislation you're amending as well, because everything feeds into the system. So my view is the same as it was before when the committee asked me to draft the open government act. It is better to work from the text of the open government act to try to deal with these concerns, and it's probably best to start looking at the open government act and working your way down through it in a coherent, logical way, so you can see how the pieces fit together. Then you can make intelligent determinations as to what should be in, what should be out, and what amendments may be required.

The committee, I would say, has to do the hard work of going through it.

[Pat Martin, NDP, Winnipeg Centre, MB]

Our only concern with that type of action plan--I agree it's a logical action plan. And I should compliment you and your office again; the book you put together is very, very helpful. It's not just the suggested wording; it's the background and the arguments for and the origins of. It's a beautiful piece of work.

[John Reid]

Thank you.

[Pat Martin, NDP, Winnipeg Centre, MB]

It leaves us with the problem that even if we do use that methodology for this study, where does it go from there? Only a minister can introduce this, so it goes from a draft notion to a piece of legislation. So we're really stymied as a committee at this point.

[John Reid]

Mr. Chairman, it seems to me there are two points here. The first thing is if the committee determines it would like to move ahead with the piece of legislation, then you could take the open government bill and do as the previous committee did and say, “We support this bill as a bill, and that the government bring forth a bill based on this bill, supported by a minister.” That was the strategy adopted by the previous committee. It seems to me that's a rational decision for this committee to look at.

[Pat Martin, NDP, Winnipeg Centre, MB]

I don't disagree. I wouldn't be surprised if we do come to that similar conclusion.

Some of the Conservative Party briefing notes must be very widespread, because I've heard a similar motif from virtually all the speakers at the Bill C-2 committee in dealing with some of the access to information clauses, one of which was CBC. They keep coming back to the fact that if we remove the mandatory exclusion, journalists are going to have to divulge their sources. That gets stated over and over again. Now the minister used the same argument today.

Can you assure people that journalistic sources would not be at risk if you made the exclusion a discretionary one, that there's a way for CBC to be covered by access to information that doesn't threaten the integrity of the privilege that exists with journalistic sources?

[John Reid]

Mr. Chairman, if you look at the open government act—I forget what clause it is—we made a proposal to deal with the CBC problem of journalistic integrity and protection of sources. Basically we said that journalistic information—and programming information, for that matter—should be subject to a discretionary exemption with a harm's test. What that means is that if a journalist—it's an amendment on page 18—and perhaps, Mr. Chairman, you'd allow me to read it. The proposal we made then was:

The head of the Canadian Broadcasting Corporation may refuse to disclose any record requested under this Act that contains information the disclosure of which could be reasonably expected to be injurious to the integrity or independence of the institution's newsgathering or programming activities.

Mr. Justice Gomery looked at that and agreed with it. What does it mean? It means that if somebody asks for information on a CBC program or about a CBC journalistic investigation, and they don't get the information they request, they can complain to the Information Commissioner. The Information Commissioner will then conduct an investigation. He will look at the information, have a discussion with the CBC as to whether it is appropriate under the circumstance, and make a recommendation.

If the CBC accepts the recommendation, that's fine. If the CBC doesn't accept the recommendation, then it would go before the Federal Court.

What this means is that the CBC journalist would have the same protection that police sources, CSIS sources, military intelligence, and anybody having to do with security throughout Canada have. In point of fact, the amendment in Bill C-2 was a mandatory exemption, which means they have more protection than the military, CSIS, or the RCMP.

It doesn't seem reasonable to me, but that's what is in Bill C-2.

We knew that the CBC needed this kind of recommendation. That is the proposal we made in the open government act a year ago, and it was the recommendation we made to the committee when I appeared before it regarding Bill C-2.

[The Chair, Liberal, Tom Wappel]

Mr. Kenney.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Thank you, Mr. Chairman.

I'd like to ask a few questions to Mr. Reid about the confidentiality of reports coming from his office, insofar as he's an officer of Parliament.

I know we're all concerned about this. Both the government and the opposition were rightfully quite concerned about the apparent leak of a recent report by the Auditor General regarding the long arms registry.

I have here in my possession an article that appeared in The Sun newspaper chain on Friday, April 28, 2006, which says, amongst other things:

While the commissioner's office is refusing interviews in advance of the report's release, a source who has seen the document says Reid generally concludes that the Conservatives' proposed Accountability Act is one of the worst attempts by any government to enhance public access to information.

I'd like to ask Mr. Leadbeater whether he was that source?

[J. Alan Leadbeater]

I can tell you, as I did before Bill C-2, that I spoke to many journalists, including that journalist, that there was no advance copy of the report given to any journalist and that there were no portions of the report quoted to any journalist.

I don't know if he's quoting a source—whether he's saying it was me or not—but I did talk to the journalist. The only advance copy of that report that was given out to anyone was to Minister Baird.

[Jason Kenney, Conservative, Calgary Southeast, AB]

So it would be reasonable then for you to assume that you were the source. You agree that you talked to this journalist—

[J. Alan Leadbeater]

I did talk to the journalist.

[Jason Kenney, Conservative, Calgary Southeast, AB]

—about the contents of the report before it was released?

[J. Alan Leadbeater]

I talked to the journalist that the report was forthcoming, and the journalist was fully aware of our open government act proposals, which—

[Jason Kenney, Conservative, Calgary Southeast, AB]

Sir, if the minister's office was appropriately refusing to grant interviews on a report that had not yet been tabled by an officer of Parliament, why were you conducting such interviews?

Are you not part of the commissioner's office?

[J. Alan Leadbeater]

We were informing the press in advance that the report would be coming out the next day, on the instruction of the commissioner.

[Jason Kenney, Conservative, Calgary Southeast, AB]

The comments in several quotes here, sir—I'm sure you are familiar with the article—go far beyond notifying the press.

Normally, an office would notify the press of the tabling of a report by way of a media advisory. Did your office issue a media advisory to that effect?

[J. Alan Leadbeater]

We are not funded for media services, so we don't have any public affairs people in our office.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Did your office issue a media advisory to that effect?

[J. Alan Leadbeater]

We did a listserv advisory to--

[Jason Kenney, Conservative, Calgary Southeast, AB]

You did issue an advisory. Then why would you need to offer such comments as this? This is attributed to a source, which apparently is you, and I quote: “the magnitude of the proposed secrecy shift in the (Accountability Act) sends a powerful signal to the bureaucracy that the government values secrecy over openness.”

Sir, does that agree with your earlier rendition, that you were simply advising journalists that the report would be tabled? Or would you not agree that this constitutes a disclosure of contents of the report?

[J. Alan Leadbeater]

No. I can tell you exactly what...all the journalists we spoke to, to notify them that the report was coming out.... If we were asked what was in the report—as journalists always ask you—we said, “You can read the commissioner's open government act and you'll know what his positions are.”

[Jason Kenney, Conservative, Calgary Southeast, AB]

The quote I just read doesn't say, if you read the commissioner's open government act, you can see what his comments are. This is extensive editorial commentary that clearly constitutes leaks in terms of the content of the report. How can you deny that?