Evidence of meeting #48 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
You said that when you spoke to Mr. Gary Switzer... Is that his name? Yes.
You had a number of conversations with him and, finally, you asked him why he had not given you the document when you knew that it existed, etc. At one point, you asked him whether there was any political interference. Is that what happened? Exactly what was his answer to you? How did the conversation unfold?
Prof. Amir Attaran
He said there was absolutely no interference, but he wouldn't answer any particulars on that question. He declined to answer my question about who was reviewing the document after he told me it was going to be reviewed by somebody other than him. When I put it to him about whether there was political interference going on, he simply reiterated that the document would have to be reviewed.
So I suppose I can put it this way. He responded to the question, but he didn't answer it.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Fine.
Both of you are well versed in access to information requests. One of you told me earlier that it wasn't normal for the person responsible for the access to information requests not to indicate, next to the censored passage, the corresponding clause. Subsection 15(1) of the Access to Information Act has nine paragraphs, from (a) to (i). That subsection reads as follows:
15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including:
Then we find the paragraphs. The first begins as follows:
(a) relating to military tactics or strategy [...]
Whereas, visibly, if we think of what you did see, meaning the uncensored passages, this wasn't the case.
The second paragraph begins as follows:
(b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment [...]
That does not seem to be it, either.
The third paragraph includes the following:
[...] any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
This does not appear to apply either. At issue is the torture of Afghan prisoners.
The fourth paragraph begins as follows:
(d) obtained or prepared for the purpose of intelligence [...]
That's not it.
Next, we read:
[...] the detection, prevention or suppression of subversive or hostile activities;
That's not it.
Paragraph 15(1)(e) reads:
[...] in the process of deliberation and consultation or in the conduct of international affairs;
That is not it.
Paragraph 15(1)(f) reads:
(f) on methods of, and scientific or technical equipment for, [...]
That is not it.
Paragraph 15(1)(g) reads:
[...] for the purpose of present or future international negotiations;
That's not it.
Paragraph 15(1)(h) reads:
[...] diplomatic correspondence exchanged with foreign states [...]
That is not it.
Paragraph 15(1)(i) reads:
[...] cryptographic systems of Canada [...]
That is not it.
In what provision would you place the torture of Afghan prisoners, if you were the one responsible for censoring documents?
Prof. Amir Attaran
I do not think any of the various heads of subsection 15(1) apply to the withholdings in this document. I think that in resorting to subsection 15 (1), no matter which paragraph is relied upon—and as I mentioned earlier, DFAIT has never been precise about that—absolutely none of the text within subsection 15(1) could be relied on legally. I think their resorting to it has been illegal.
It is relevant that the document is marked “Confidential–CEO”. Here, “CEO” means “Canadian eyes only”. This document was intended for Canadian eyes only. As such, it isn't any material that would have been provided by another government, such as that of Afghanistan, and that we would be obliged, out of diplomatic undertaking, not to disclose to our own citizens. This is something—
As an Individual
If I could intercede here as well, there's a separate section of the Access to Information Act that allows a department or the government to withhold information that it has obtained from foreign governments. That's subsection 13(1), which I've never seen in any of these. It's always subsection 15(1).
Prof. Amir Attaran
Mr. Esau is exactly right, and he says it better than I do. There is subsection 13(1), which would have dealt with information provided in confidence to Canada by another government, but that's not the section that was used here. That's the only section I would have thought might be used. For instance, if Afghanistan had said yes, they torture over there in Afghanistan, then perhaps Canada would have an obligation not to divulge that. However, a section of the act other than subsection 15(1) would then have had to be used.
The Department of Foreign Affairs and International Trade clearly does not believe this is information received as a diplomatic confidence. That's not the section of the act they relied on.
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you, Mr. Chairman.
My thanks to both our witnesses. Let me say at the beginning that I can't imagine two more credible witnesses, both for their experience and their commitment to this issue of freedom of information. I thank them both for being here, and for their patience.
I'm not going to repeat some of the very good questions I've heard already. I'll jump right to the complaint that has been filed, because I think it's pluralistic and speaks to the whole issue.
Professor Attaran, your complaint says you believe DFAIT knowingly and improperly withheld documents that they knew to exist. Is that an accurate quote from the complaint that you filed?
NDP
Pat Martin NDP Winnipeg Centre, MB
Do you believe there was political interference in denying the existence of those documents?
Prof. Amir Attaran
I do believe there was political interference. Let me be unambiguous about that.
Prof. Amir Attaran
Mr. Esau was told—and I don't know the date, but perhaps he can mention it—that human rights reports for other countries were not compiled by DFAIT.
Prof. Amir Attaran
On March 22 Mr. Esau received that. That is flagrantly a lie. It is absolutely clear that the Department of Foreign Affairs and International Trade has and still does produce human rights reports for specific countries. I mentioned the Syria report, which is even cited in the Arar commission report, which was, of course, public before the date that Mr. Esau was told that, no, DFAIT doesn't actually produce such reports.
It is also clear to me that before I was given the Afghanistan 2006 report, along with those reports going back to 2002, it was reviewed by people in the department. It would seem that somebody reviewed it after the access coordinator responsible for the file, Mr. Gary Switzer, already had it.
NDP
Pat Martin NDP Winnipeg Centre, MB
This is shocking. It really is shocking.
You say there seems to be a blind spot in DFAIT about torture. I'm not sure which of you witnesses jotted that note down, but there seems to be a wilful blindness, perhaps because it seems that we exported torture in the case of Maher Arar, or exported the dirty work to places where we had reason to believe torture may take place. Now that we finally have the floor and now that we finally have you as witnesses to question, my jaw is dropping at what you have to tell us.
On the criminal investigation, my colleagues from the Conservative Party are saying the first witness should be the Information Commissioner. We had the Information Commissioner here, speaking about this very issue, and the deputy commissioner answered a question from me about what the offence is in regard to denying the existence of a document. He said it's a criminal offence. He didn't cite section 67.1, but we did have him here to ask him about that.
It's your testimony that you believe there should be a criminal investigation, and you referenced that perhaps this is an appropriate task for the new Director of Public Prosecutions, whose office was just created by the new government in their Federal Accountability Act. Can you expand on how you might see that unfolding and how we initiate a request for such a prosecution by the new Director of Public Prosecutions?
Prof. Amir Attaran
I have already indicated my wish to the Information Commissioner that the Information Commissioner work alongside the RCMP to investigate any possible criminality in this matter. I would also encourage this committee to work alongside the RCMP and, if appropriate, the DPP. I'm not certain what the order of precedence among these various investigations might be, but I am certain that an investigation by the Information Commissioner, by this committee, and by the RCMP—all three of those—would be welcome and, I believe, necessary, given the facts of what has happened.
NDP
Pat Martin NDP Winnipeg Centre, MB
Mr. Esau, do you believe your experience to date warrants an investigation by the RCMP or the DPP?
As an Individual
I wouldn't go that far about this particular issue at this point. I think a different issue that has to do with Afghanistan and access to information requests should probably be followed up. It's not particular to the matter you're talking about here, so I don't know if the chair wants me to go into what that might be.
I'm going to be very interested in getting the Information Commissioner's results from the investigation. The unfortunate thing about the federal Information Commissioner is that he cannot compel documents to be produced. You get a nice letter at the end of an investigation, saying that your complaint is well founded, that there were things withheld, and that they've told the department. But that still doesn't give you the documents.
The Office of the Information and Privacy Commissioner of Ontario, at the provincial level, can compel a department to produce documents. They have the legal authority to say they have investigated this complaint and have found the department was right in withholding some of this, but that it must produce this other stuff. And the Ontario office gives you a timeline.
I'm just going through that on another issue, so I'm going to be interested to see what happens. I want to take this one step at a time. The other issue that I'm dealing with, with National Defence, is much more serious.
Liberal
NDP
Pat Martin NDP Winnipeg Centre, MB
Very briefly, how does the experience of either of you, in dealing with DFAIT, compare with dealing with other countries when it comes to freedom of information and access to information? Perhaps your answer about Ontario gives us a partial answer on jurisdictions. Are there any experiences you can share?
