Information & Ethics Committee on April 26th, 2007

[Mike Wallace, Conservative, Burlington, ON]

Should it be on an agenda for us to discuss with you in the fall, after it's tabled?

[Robert Marleau]

In another life I was also concerned about the delays of information coming to Parliament, and I even made recommendations that, as part of the supply process in relationship with Treasury Board, the DPRs should actually be ready by June and given to Parliament.

Within range, ideally, they should be to you before you pass the estimates of the subsequent year. But I gather that for government to extract all of that information in time to table it in June is somewhat difficult. So we're caught in that cycle, as is any other government agency or department.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Wallace.

Mr. Dhaliwal, followed by Mr. Tilson, followed by Monsieur Vincent, followed by Mr. Van Kesteren.

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

Thank you, Mr. Chair.

Thank you, Commissioner, and your team, for coming out here today.

I would not agree with my colleague Mr. Wallace that you're here only to deal with the estimates. In fact, an important issue that my colleague the Honourable Peterson mentioned is the tortures in Afghanistan--

[Mike Wallace, Conservative, Burlington, ON]

On a point of order, Mr. Chair, if you read the actual agenda for this meeting, it says “Pursuant to Standing Order...Main Estimates 2007-2008: Vote 40”--

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

Do I have the floor, Mr. Chair?

[The Chair, Liberal, Tom Wappel]

Yes, you have the floor. It's not a point of order.

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

Thank you.

I would like to follow up on that one as well, Mr. Commissioner.

Yesterday in the House of Commons, Minister MacKay claimed that he never read the report that is critical of the most important military foreign policy and priorities of this government. Can you tell us whether your investigation will look at whether anyone in his office reviewed the report and also the ATIP requests?

Also, can you tell us that you will investigate whether someone has looked at this report and who has given instructions to black out the report as well?

[Robert Marleau]

Mr. Chairman, I beg your indulgence, I'm not trying to avoid answering the question. As I said--

[The Chair, Liberal, Tom Wappel]

Maybe you could walk us through a typical investigation and how it would take place.

[Robert Marleau]

Exactly. That's just about what I was going to do. I just wanted to preface that it wasn't in answer avoidance. As I said earlier, and it was confirmed by the deputy commissioner, we are prohibited by the statute to comment on any details of an investigation, even after the investigation is over.

As for a typical investigation, a typical complaint comes to our office and we evaluate it. There's a conversation with the requester to clarify it. It is sometimes narrow, because sometimes the requester isn't quite sure what they're asking for. If we decide to go ahead at the request of the complainant, we'll then assign an investigator.

The investigator will look at the issues, the facts, the documents. He may indeed talk to people in the minister's office, or to anyone who was involved with the disclosure or non-disclosure of the document. The investigator then formulates an opinion, which then comes to the director of investigations, who will look at it. He may go back and say, look, our investigator has made this recommendation, but you don't seem to be in agreement. Could we try again as a mediation process? Mr. Dupuis will try to get the department to comply, from our perspective. We'll also take representations from the requester.

At the end of the day, there's a decision that has to be made; it's either a section 35 or section 37 report. Ultimately it can end up in the Federal Court. If I recommend disclosure, because I have no powers to order disclosure, it would be up to the court to decide if it should be disclosed or not.

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

Can you compel, Mr. Commissioner, the government to immediately table this report into the House?

[Robert Marleau]

I have no order-making powers of any kind.

[J. Alan Leadbeater]

I will just clarify. In our office we will definitely see any document the government wishes to keep secret, unless it's a cabinet confidence. We will see the document and we will ask who made the decision to keep it secret. When we find out who made the decision, we'll ask them why, and we'll measure that against the exemptions in the statute. We can order the document produced to us, but not to a parliamentary committee or to be made public.

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

In answer to my question, you will have access to whether the officials looked at the file--and if they did--and to who gave him or her the orders to whitewash that report.

[J. Alan Leadbeater]

Without buying into any of the particular language in your question, we cannot assess whether the reasons justify secrecy until we find out who made the decision. Yes, our first step is, who made this decision? That is always part of our investigation.

[Robert Marleau]

They have to invoke a specific exemption under the statute. Apart from the practice in our office, there's also a lot of jurisprudence around all of those exemptions, whether they're mandatory or discretionary.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Dhaliwal.

It's pretty clear from a procedural point of view. You get a complaint, let's say hypothetically, about the items that are in the newspaper. You actually are able to see the uncensored document in its entirety. You discuss with the relevant person who made the decision to censor it why they made the decision to censor it and what they censored. You measure that against the standards in the act.

Then what happens, once you've come to a conclusion?

[J. Alan Leadbeater]

If we disagree with secrecy, we will recommend to the department that the document be disclosed. If we agree with secrecy, we will tell the complainant that we agree with the department. Either way, the next step is that either party can go to the Federal Court and have the Federal Court make a decision.

[The Chair, Liberal, Tom Wappel]

Thank you.

Mr. Tilson.

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

Thank you, Mr. Chairman.

The references to the Federal Accountability Act, which you've already commented on, to some degree, with the actual estimates on section 4 dealing with “Other”.... The last sentence reads: As a result, planned expenditures for 2007-2008 and 2008-2009 do not cover any specific spending commitments to manage implementation of the Federal Accountability Act.

I think in the question to Mr. Wallace you referred to the amount that is in section 3 as being put there by Treasury Board.

[Robert Marleau]

We put it in part III on a recommendation from Treasury Board.

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

I just want to be clear. Your commission has no program planning at all for this period of time with respect to the Accountability Act.

[Robert Marleau]

No, sir. We were ready for the implementation of the Accountability Act both internally and in the context of the expanded scope. Internally we now have an ATIP coordinator because we're subject to the act. We didn't rush out to hire a whole bunch more investigators, anticipating that we would get x number of complaints.

The Treasury Board estimate is that we will require 12 more full-time equivalents. That $1.5 million is almost all for salaries. We're somewhat skeptical and think that figure is too high.

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

It's good news to hear that, Mr. Commissioner. Normally it's the other way.