Information & Ethics Committee on April 26th, 2007

[J. Dupuis]

As the Commissioner explained, Mr. Vincent, I will most likely need some legal opinions in the course of the investigation. That is when I consult with the legal team to get a legal opinion. Am I right in wanting to go to the department—

[Robert Vincent, Bloc, Shefford, QC]

My main question is as follows: How do you determine which information should be disclosed, and which should not? I know that an investigation is carried out, but who do you consult in order to decide whether or not to censure certain information or to withhold it?How do you go about digesting all of this in order to decide whether a particular piece of information should be disclosed?

In the Afghanistan report, some information was released, while other details were not. On what did you base your decision? Does section 15.1 or some unwritten rule stipulate that any word, phrase or information that would embarrass the government shall not be disclosed? Do you consult within the office? How do you proceed?

[J. Dupuis]

First of all, we have our own manuals, and there are some precedents. In addition, as we said initially in reply to Mr. Peterson's question, we have to listen to the reasons the departmental officials give for making the decision. Of course we will listen to their reasons and why they believe disclosing the information could be prejudicial.

If we do not think that disclosure is clearly prejudicial, we will explain our position. Then we will discuss the matter. The report viewed by the Commissioner will outline the department's position, the complainant's position and our own opinion. At that point, the Commissioner will have to make a decision, after analyzing the various views and after an independent investigation of all the positions has been conducted.

Clearly, many things happen in the course of an inquiry. So the department will see our point of view, and we will see theirs. It is possible that in the end only 20% of the document may not be disclosed, whereas initially, the department may have asked that over 50% of the document not be disclosed. If we do not support this decision, we will have to convince the Commissioner of our view, and he will have to go to the minister and tell him that the document will have to be released.

[Robert Vincent, Bloc, Shefford, QC]

Who has the final say?

[J. Dupuis]

In our office, the Commissioner does, and he is assisted—

[Robert Vincent, Bloc, Shefford, QC]

I understand that in your office the Commissioner has the final say.

[J. Dupuis]

Ultimately, the minister has the last word. If we make a recommendation that is rejected by the minister, the Commissioner will go to court to request that it be reviewed.

[Robert Marleau]

Recent practice dictates that if I issue a report on—

[The Chair, Liberal, Tom Wappel]

Mr. Tilson.

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

Thank you, Mr. Chairman.

I just want to finish my line of questioning on this panel, Mr. Leadbeater. As I understand it, the panel ends this fall. It's a two-year pilot that ends this fall, and you've indicated you're not going to have any supplementals.

Mr. Leadbeater, you and Commissioner Reid can probably take credit for that whole panel. Mr. Reid came and said the whole process was unsatisfactory as far as the commission was concerned. He may not want to take credit for it, but—

[J. Alan Leadbeater]

I think this committee can take credit for it.

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

Well, indeed, we did spend a lot of time on it, but it was certainly former Commissioner Reid's initiative that got that ball rolling.

So it comes to an end, and I don't know whether you have any thoughts, Mr. Marleau, or Mr. Leadbeater, on what happens now.

[Robert Marleau]

As Mr. Leadbeater said in his last answer, there'll be an evaluation this fall. In this spring of 2007, we're supposed to engage Treasury Board with our experience, and they will share with us their experience with the panel.

After that, it'll be up to the President of the Treasury Board. I assume he will make recommendations back to you, since the genesis was here, on a continuing process. I think all the officers of Parliament—who just had a meeting—are very supportive of the process, as it is very much an improvement. There's a lot more transparency on the part of Treasury Board, and it would be a shame to go back to position ante.

But the initiative is in the hands of the President of the Treasury Board, who started it up, and it will up to him to make recommendations for continuing.

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

Do you have any recommendations as to whether this committee should do anything further, or should we leave it in the hands of others?

[Robert Marleau]

I would certainly undertake to share my views, my evaluation of the process, with the committee, and if it wishes to take it up with the Treasury Board president, that would be up to you. But I'll have no difficulty in sharing my views, not only on its usefulness, but also on how it can be improved.

[J. Alan Leadbeater]

If I may just add, I think we're going to be recommending to the Treasury Board folks that as part of the evaluative process, they try to include all of the committees that made recommendations about the panel, including this committee, the public accounts committee and, I think, the Senate finance committee. Part of the evaluation has to be how you folks feel the panel process fits in with your obligations as standing committees with substantive responsibilities.

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

Thank you, Mr. Chairman.

Those were my questions.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Tilson.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair.

Mr. Marleau, it's hard to overestimate the importance of your office. We've heard other witnesses and heard people say that freedom of information is a fundamental cornerstone of our western democracy. People have called it quasi-constitutional. Once again, your office is at the eye of the hurricane, at ground zero of a crisis of confidence in the government.

If the Prime Minister and his government knew the realities about the Afghan detainees and chose to hide the truth, then they have broken faith with the Canadian people on a monumental scale. The sponsorship scandal was only about money; this is about the fundamental values by which Canadians define themselves. This is the kind of thing that brings governments down. I'm not overstating that at all. It's not going to be enough that a minister falls on his sword, this could in fact bring down the government. Your office is at the heart of it, and you've told us you have a backlog of 1,057 cases.

I have two questions.

One, if directed to do so by this committee, can you fast-track this investigation and jump the queue, as it were?

Second, what form will your report ultimately take? As I mentioned, this is of critical national and international interest.

Those are my questions to start.

[Robert Marleau]

In answer to your first question, which is could this committee order me to fast-track an investigation, the statute is set up for my organization to be at an arm's-length relationship for these totally independent--

[Pat Martin, NDP, Winnipeg Centre, MB]

At arm's length from government, Mr. Marleau, not from Parliament.

[Robert Marleau]

Well, at arm's length in terms of the way the investigations are structured. They have to be totally independent.

The process and the content are two things. I can assure you, as I said in my opening statement, that in a given investigation of a complaint, the consequences of which I would feel that the severed matter should be divulged, I would without hesitation issue a section 37 recommendation to the government and, with the requester's agreement on one of these very serious matters, have no compunction about going to the Federal Court to request an order for it to be divulged. That's the process I'm bound by. Only the court, ultimately, can order the actual disclosure that's being denied.

[J. Alan Leadbeater]

If I can follow up, you also asked about the form of the report. The statute requires us at the end of an investigation to report the results and the basis for them to the individual who made the complaint, to the government institution against which the complaint was made, and to Parliament in an annual report or a special report. Any other comment or disclosure related to the investigation is prohibited by the statute, and so it's only in those types of reports.

[Pat Martin, NDP, Winnipeg Centre, MB]

Under what conditions would you consider that it warrants a special report to Parliament?

[J. Alan Leadbeater]

The test is actually set out in the statute. I'll turn to section 39:

in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereof should not be deferred until the time provided for transmission of the next annual report