Information & Ethics Committee on June 19th, 2006

[Pat Martin, NDP, Winnipeg Centre, MB]

In order to get all-party compromise--not to interrupt, Mr. Minister--we did agree to only final decisions and actions, not thought processes or the advice or the recommendations along the way. That's what won all-party support. Our only mistake was we chose to put that into the Library and Archives of Canada Act, which wasn't really opened by Bill C-2; therefore, it was deemed out of scope.

[Vic Toews, Conservative, Provencher, MB]

That, I understand, is probably the best place to put it in. That is a good point. I'm prepared to consider that kind of recommendation independently. If you wish, as a committee, to pass a resolution in that respect, I will take that forward.

[Pat Martin, NDP, Winnipeg Centre, MB]

That's excellent. Thank you. I appreciate that.

That's all I really have. Thank you.

[The Chair, Liberal, Tom Wappel]

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

Not being a regular member of the committee, the discussion is interesting to me, but I certainly agree with all those who have put forward the position that it's the government's responsibility to put forward the legislation. All the committee can do is basically put forward a report, and you can take that under consideration and do as you please. So I really do believe the government has the responsibility to put forward the legislation; that's the way you should be dealing with it.

But Minister, with all due respect, on this particular issue you've stood absolutely on your head. As one of the people who took questions from you on this issue, you were one of those asking for cabinet confidences, even as they related to security matters. I personally don't disagree with much of the position you put forward in your remarks. In fact, I come from the same standpoint as your statement on security information from other countries; you'd be putting this country at risk in terms of getting information from other countries if that information were available under access to information. But you're holding the direct opposite position to what you used to hold, and that indeed does bother me.

I agree with you as well on solicitor-client privilege. Whether you're a minister or a deputy minister, you have to expect to get frank and open information, and you don't want the people who are advising you to be worried about what they might say because it might come back at them after an access to information request. So I agree with you on that point.

But this is a complete turnaround for you, Minister. I guess it comes to the point that we have to be careful not to have the Access to Information Act acting in a way that politicians can play politics with it. It should be there for information that's required to make decisions—and, yes, to hold the government to account. But we have to be careful that in some of these issues it's not used by politicians to play politics with, which can in fact happen.

I'm going to ask a question on something a little less innocuous, on a higher level of access to information. I believe we have a real problem with the current act in terms of the cost of gaining information. I'll give you an example. In my home province we are trying to deal with a difficult issue with the Canadian Food Inspection Agency. The information we want is actually just a statistic, to affirm how much it's costing and to see if there is a better policy approach we can take. For the information we get back, it's going to cost $1,600, due to the work they have to do. I think that's one of the greater dilemmas with the act right now, in terms of the cost for an ordinary citizen, or even an MP, of photocopying per page and the investigative work, and so on, in getting the information they require. So I think that's a huge constraining factor for Canadians in gaining information that is available to them under access to information, but the cost is the prohibiting factor.

I wonder what your views are on that in terms of the overall financial cost. The information may be available, but the financial cost can be a constraining factor to individuals wanting information.

[Vic Toews, Conservative, Provencher, MB]

That's a good point. The point is whether or not the actual documents exist. In some cases, if you're asking for information that simply doesn't exist in a documented form, and government has to go and create the document in order to provide the information, it does become very expensive. If you're talking about $1,600 for simply photocopying a document or record that exists, I don't believe that's what occurs.

I'm familiar with another case that was the subject of a newspaper report just recently, where someone asked for information. It was from the RCMP, and the cost was $1.6 million, they were told; yet when they went back and examined that request using a different computer program, they were able to do it at a fraction of the cost. I can't remember what the amount was.

The point is that there will be a cost associated with creating documents that do not exist. I think it's incumbent upon the government to explore the ways to ensure that the document being created is created in a most cost-effective manner. I agree with you that you don't simply want to say, well, that's going to cost $2 million, and write the cheque before we start work on that. I understand that issue.

Again, there's a very big difference between having the document and having to create the document.

[The Chair, Liberal, Tom Wappel]

Thank you, Minister.

We'll have Mr. Van Kesteren.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you, Mr. Chair. Thank you, Minister, for coming here.

Most of my questions have been dealt with. I'd just like a little bit of clarification, sir, if you would.

In your report you had some reservations about cabinet confidence. Is it your suggestion, then, that we keep the status quo, that we would have a law saying...?

[Vic Toews, Conservative, Provencher, MB]

No, I wasn't suggesting that we keep the status quo. What I had stated in my opening statement was that we look at some kind of certification process so it could be determined whether this was in fact a cabinet confidence, which is much the way it is done presently under the Canada Evidence Act with respect to other types of information. In that context, a judge looks at the issue, makes the determination, and then determines whether it is a cabinet confidence.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Then my second question. Section 23, is that the...?

[Vic Toews, Conservative, Provencher, MB]

The solicitor-client privilege.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Yes.

You mentioned law enforcement. You also mentioned privacy information. Wouldn't that infringe upon existing laws? Wouldn't the current code disallow striking section 24?

[Vic Toews, Conservative, Provencher, MB]

Unless there's some kind of constitutional impediment, a future Parliament can always change a statute. So the question you have to ask yourself is this: where we have received information on specific undertakings, whether it's census data, security data, or other types of data, do we then unilaterally change the law and breach the undertakings we made to those people when we first collected that information?

In the last Parliament, and even before that, there was a broad discussion about the release of census information for the purposes of genealogy. There was quite a groundswell of people wanting that type of information, and yet the prior government was rightfully concerned that the information had been acquired under certain circumstances. They didn't want to breach those undertakings. I believe that we ultimately arrived at some kind of compromise in terms of how many years we had to wait. I can't remember the details. But even so, by statute, we were breaching an undertaking that was made, whether it was 50 years ago or 100 years ago.

So that is a concern. We can always make the changes in the law, but let's look at the impact we're having, then, and at the undertakings we've made in the past.

[The Chair, Liberal, Tom Wappel]

Is that it?

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Yes.

[The Chair, Liberal, Tom Wappel]

Mr. Dhaliwal, go ahead.

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

Thank you, Mr. Chair and Minister.

Minister, I am one of the newest additions to this committee. Mr. Tilson, Mr. Martin, Madame Lavallée, and Mr. Wappel have more experience. This committee has done a lot of work.

I can see, and I think there's a consensus, that you were very passionate about transparency when you were in the opposition. In fact, if that was the case, then I have to agree with Mr. Martin. Why would you climb down from that position on transparency? I think you should be passionate about it now, and you should go all the way, because there are so many holes in this paper. For example, what is it appropriate to look at in ministers' offices? How I understand it is that all you would be able to access from the ministers' offices is correspondence in regard to administration. If that's true, I think you would agree that it's profoundly undemocratic.

I would like your comments on that, Minister.

[Vic Toews, Conservative, Provencher, MB]

I worked on this file for a number of years as well, and I've expressed concerns about proposals to open this up completely. One of the specific comments that I've made publicly in the past is on the issue of cabinet confidences when I wasn't a cabinet minister. I said this is a deep concern and that you simply don't want to open up cabinet documents to that kind of proposal. To suggest that my comments here are somehow new and that I haven't expressed reservations about simply opening up things is just wrong.

I view the right to access to information in much the same way as I do the relationship between the substantive rights in the Charter of Rights and Freedoms and the limitation in section 1. We have freedom of expression in paragraph 2(b) of the Charter of Rights and Freedoms 1982, but what we also have is section 1 of the charter, which says that the rights and freedoms set out in this document are limited in such a way as can be demonstrably justified in a free and democratic society. I'm paraphrasing a bit, but that's generally the import of section 1.

All I'm saying here today is that I am passionate about freedom of speech, for example, and freedom of expression, and yet we all acknowledge that there have to be limits on freedom of expression. What I'm asking is, how does one define those limits? I think we're having that discussion. In the discussion paper that I've tabled in the House, and in the comments that I've made here today, I've said I'm in favour of an open government. How do we define the extent of that openness in a manner that is consistent with our other obligations and responsibilities?

I've given you some very clear indications of some of the things I think should be addressed by this committee. I think the Information Commissioner, in his general principle, is correct, but he hasn't addressed what the appropriate context is. What we're trying to do here today, in much the same way that section 1 does for the freedoms set out in section 2 or the rights set out in sections 7 through 11, is establish a context. That's what I would hope this committee could look at.

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

There are many issues we could talk about if there is any doubt when we read that discussion paper.

One of the other examples is when you put two and two together it seems like it's all coming up coincidentally. Now we are saying that we should have fixed election days. I'm in favour of that, but now we are saying that if you have polling data, for example, we cannot release that for six months before the election date because there's a fixed election day. You can have the polling done to form the policy or your platform, but you might not be able to disclose that because now you know exactly when that election date is. I hope you understand what I mean.

[Vic Toews, Conservative, Provencher, MB]

I'm not familiar with the six-month limitation on the release of that documentation. I'm assuming that's the case.

[The Chair, Liberal, Tom Wappel]

If you assume that's the case, do you have a comment on not being able to have access to it?

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

You see what I mean? If the minister's office or the government has a poll done, they don't have to release it for six months from that day. Now you know the election day is going to be a fixed date, so you can get your polling done, and you can set your platform based on that, and you will not have disclosed it.

[Vic Toews, Conservative, Provencher, MB]

If that's a concern this committee has, they should raise that concern. We're here to listen to both sides of the issue. If there is a problem about that, let's hear about it. I can tell you that I haven't memorized each of the sections in this very complicated--

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

I don't mean you should memorize all of those.

[Vic Toews, Conservative, Provencher, MB]

I know you don't, and I was being a little facetious, but I'm saying if there is a concern about that, let's deal with it. We want to hear from the committee on that.