Information & Ethics Committee on May 17th, 2007

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Chair.

I'm interested in comments and testimony where both of you, I believe, said it was your testimony that subsection 15(1) is being abused or overused, or used in areas that weren't appropriate. That's where I find the document that was made available to us very helpful, where you can actually see what's blacked out and what excuse they use.

Subsection 13(1) is used three or four times that I can find, and maybe appropriately, because it talks about information given to this government by the Afghanistan human rights commission--in other words, from another government. So that would make sense.

But it also uses paragraphs 21(1)(a) and 21(1)(b) in whole sections. Now, I understand that is advice to ministers or cabinet confidences. What are paragraphs 21(1)(a) and 21(1)(b) for?

[Jeff Esau]

There are some very fine points. This is a very controversial exemption that allows, on a discretionary basis, for institutions to withhold information that is deemed to be considered advice to the minister. So this is not to be confused with a cabinet confidence, which is an entirely separate issue.

Advise to the minister can be interpreted very broadly or it can be interpreted very narrowly. There are provisions within section 21 that basically say if you are talking about a program or a policy that has not yet taken effect, you can withhold information pertaining to the advisability of doing so. It drives people crazy to see a section 21 exemption because the latitude for interpretation is so incredibly great.

[Pat Martin, NDP, Winnipeg Centre, MB]

That's worrisome.

[The Chair, Liberal, Tom Wappel]

Excuse me for a moment.

Colleagues, I had said we would go for another half an hour. Mr. Martin has two and a half minutes left in his questioning and we've done the half hour. I also have Mr. Dhaliwal and Mr. Stanton. I propose that would be the end of the list. Is it the will of the committee to allow those three people to ask their questions?

[Some hon. members]

Agreed.

[The Chair, Liberal, Tom Wappel]

I'm sorry to interrupt. Go ahead, Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'm concerned when you say that subsection 15(1) is being abused. It seems to be the default exemption--

[Jeff Esau]

Mr. Chairman, I said it was being liberally used, like “overly”, like “very freely”, not--

[Pat Martin, NDP, Winnipeg Centre, MB]

Perhaps it was Professor Attaran who used the term “abused”, but I'm inclined to use the word “abused” in my own.... I can take a little more latitude from my seat perhaps than you can.

In the last minute I have, I'll ask a point of clarification.

One of the excuses the government side members used as to why we should not hear your testimony today is they felt that by interviewing you it may somehow interfere with the ability of the Information Commissioner to investigate the complaints. In other words, by having these two studies running at the same time, there may be tainted evidence, etc.

There is the rule that what you say here is privileged and it can't be used against you, first of all, but if a person first learns of an offence through privileged testimony, it's tainted evidence in terms of pressing charges. Do you have any views on whether or not your testimony here today will interfere or jeopardize the investigation by the Information Commissioner or any subsequent investigation by the RCMP, if that's necessary later on?

[Jeff Esau]

Do I think it will? No, I don't. I don't think we're talking about anything that due process in other forums wouldn't uncover or question. I'm giving the very best evidence I can based on my experience and my activities. I'm not being really subject to cross-examination. There may be higher levels of credibility that other people in decision-making areas would like.

So I don't think what you're doing here is interfering with the Information Commissioner. The Information Commissioner has a representative here who's keeping track of what's going on, and I'm sure that our discussions will inform the decision on how to proceed.

[The Chair, Liberal, Tom Wappel]

It's interesting information, isn't it, Mr. Martin? You're out of time, though.

We'll have Mr. Dhaliwal, followed by Mr. Stanton. Try to keep it to five minutes, both for the questions and the answers.

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

Thank you, Mr. Chair.

Mr. Tilson was asking Mr. Attaran for the names. I can bet you that none of the members of Parliament in this room, never mind people around the dinner table, would be able to remember the names of all 308 MPs. But that's besides the point. I'm not going to go there.

I'm coming back to Mr. Attaran. You mentioned Amnesty International last week. Do you feel that the government was obstructing by not disclosing the information on this Amnesty International lawsuit?

[Prof. Amir Attaran]

The Amnesty International and B.C. Civil Liberties judicial review that is pending before the Federal Court is a matter of national importance. That lawsuit seeks to prohibit the transfer of detainees to Afghanistan or any other country where there is a substantial risk of torture.

The fact that the Attorney General has been instructed by this government to employ the national security exemption of section 38 of the Canada Evidence Act-- actually, I believe it's section 38.01--and has instructed witnesses on cross-examination to not answer very basic questions on their affidavits, citing national security, is undeniably an obstruction of that lawsuit.

I repeat what I said before. In all the cases I have either participated in or watched closely, I have never seen the national security exemptions being used more heavily than in this case.

This is not a frivolous case. Amnesty International has a Nobel Peace Prize. They probably do have a legitimate interest in human rights around the world, I would say. That they are being obstructed in their legal proceedings by the Attorney General, acting at the instruction of this government, is absolutely unconscionable.

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

You also mentioned Madam Jocelyne Sabourin of DFAIT. What was your conversation with her when you asked her to reconsider the exemptions?

[Prof. Amir Attaran]

As I said in my main testimony on April 23, Ms. Sabourin disclosed the Afghanistan 2002 through 2006 reports to me, and that evening I did ask her to reconsider the exemptions, including the section 15 exemptions we've been talking about today.

I indicated that I thought the exemptions were heavy-handed, and I asked her to reconsider and to do so within a day, which she did. And she made absolutely no change, none whatsoever, to the exemptions. I told her that if she could not make a change to the exemptions, if she could not consider disclosing more information, as I was certain would make sense for a document of this kind, I would complain to the Information Commissioner, first, and second, I would inform The Globe and Mail.

In response, Ms. Sabourin said that I was “threatening” her, which was a very curious response, I thought. If a citizen using the Access to Information Act says either give me information or I will complain to the Information Commissioner and I will go to The Globe and Mail, that, to me, is not a threat. Yet her response was that I had threatened her and that she was going to keep a note of that on the file.

I pointed out to her that actually a citizen thwarted in an access request going to the Information Commissioner and going to the press is not called a threat, it's called democracy, and she ought to get used to the fact that democracy works, with the commissioner as a tool and with journalists as a tool.

But the reason I recount the story is that when you do have Ms. Sabourin in front of this committee, you may wish to ask her, in order to have a glimpse into her mindset on access, why she would construe a promise to go to The Globe and Mail and a promise to go to the Information Commissioner as a threat.

[The Chair, Liberal, Tom Wappel]

The final questioner is Mr. Stanton, for five minutes.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, Mr. Chair.

I'll go first to the professor, and I have a final question for Mr. Esau, thankfully enough.

One thing you said caught my interest. In the course of your statements about Amnesty International and the B.C. Civil Liberties Association going to court on this question, you said that the Attorney General had been instructed by this government to contest and/or obstruct or appeal the court proceeding. That came as a bit of a surprise to me. The government doesn't typically instruct the Attorney General. Those decisions at the judicial level are handled, as I understand, independently. The Attorney General makes a decision to proceed.

Is there something incorrect about that statement?

[Prof. Amir Attaran]

The Attorney General is the Crown's lawyer and, as with any lawyer, is instructed by his or her clients. The respondents in the Amnesty International and BCCLA judicial review at Federal Court are the Minister of National Defence--i.e., the government--and General Rick Hillier, Chief of the Defence Staff. So it will be they who are instructing the Attorney General.

[Bruce Stanton, Conservative, Simcoe North, ON]

You're assuming the logical order of that action.

[Prof. Amir Attaran]

That's right, and one of them, of course, is a minister of the Crown.

[Bruce Stanton, Conservative, Simcoe North, ON]

Okay, I appreciate that.

Mr. Esau, I didn't get your initial chronology. You outlined your background, and so on, and your distinguished career in the Canadian Forces, which we're all very proud of.

How long have you been on this access to information beat?

[Jeff Esau]

That's a good question.

I started doing it after I got out of the military in 2000. I was medically released due to a service injury. One of the things they want you to do in your transition to civilian life is something within your skill set and capabilities. This prevents somebody who may be a pipefitter in the military and who wants to go out and be a brain surgeon from saying, “You need to pay for all my education.”

So this was something that was very marketable for me.

[Bruce Stanton, Conservative, Simcoe North, ON]

I'm sorry, I don't want to rush you along, but I only have five minutes and I want to get to my question.

So for about the last seven years, you've been working this. You described a culture that exists within certain departments. You said, for example, that some departments are quite willing, but sometimes there's some resistance, so that when the ATI coordinator actually goes to get the documents there can be a problem.

In your estimation, in the last seven years, have you seen a substantial change in the way that culture has evolved? Has there been anything, for example, in the last year or so that has changed as compared with, say, the early years in which you began to work in this field?

[Jeff Esau]

I think the things I've been asking for under ATI over the last six months to a year have been much more politically sensitive than anything I had been doing up to that point. So it's difficult to know the baseline. When you're asking about stuff that's fairly innocuous, then the information flows more easily; the requests are answered faster, and they tend to have fewer exemptions. But when you're dealing with something that is more obviously—

[Bruce Stanton, Conservative, Simcoe North, ON]

So the sensitivity of the subject perhaps might drive a different type of response?