Information & Ethics Committee on May 17th, 2007

[Prof. Amir Attaran]

I have used the Access to Information Act and its provincial equivalents in this country, and I've also used its equivalents in the United States, Britain, and South Africa. I would say our federal Access to Information Act is the one that I find the most frustrating and frequently barren to exercise. I have had better luck requesting information from the United States and South Africa—even from Africa—and very much better luck requesting it from Britain.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Martin.

I think it's fair to say that this committee, in a previous Parliament, expressed its frustration with the Access to Information Act in a very direct way. It's one of the items of business that we're attempting to pursue in our committee this time.

We now go to Mr. Reid, for seven minutes.

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

Thank you, Mr. Chairman, and my thanks to our witnesses for their patience.

As well, Mr. Chairman, I thought it was entirely appropriate for you to give Professor Attaran a little extra time, because we didn't have all the contextual information. He was very helpful in providing it in his opening remarks. That did take some time, but it allows us to be a little more fulsome in our questions.

Mr. Esau, I just wanted to say that I used to be a freelance journalist myself, so you have my empathy. I also used to be a Greely resident as well. My dad still lives there.

You had to listen to everything that went on this morning. There's one thing I have been trying to figure out, leaving aside the issue of what other laws might be appropriate and whether it might be appropriate to have other kinds of investigations, as Professor Attaran has suggested.

Just as it's written, our mandate deals with the access to information law and breaches of the access to information law. I wonder if either of you could assist me by pointing to aspects of this particular law that might have been violated.

I wrote down a couple of things that occurred to me as I was preparing here. I'm not sure if simply denying the existence of a document represents a violation. It may, particularly if it's done with knowledge that the document exists, although it does occur to me that it's conceivable—maybe it's not conceivable, so you could set me straight on this—that a person can just not be very well informed or very competent. That kind of thing could occur. But maybe that can't happen in this case. Anyway, denial of existence of a document could be one possible violation. I don't know if it is or not, but if it is, that would be a source for us to pursue.

There's citation of an inappropriate section of the law in dealing with this. Professor Attaran mentioned that subsection 15(1) is mentioned over and over again. Even if that's inappropriate, I don't know that it constitutes a violation.

There's the failure to be very specific. I can imagine. I have the law in front of me, and Professor Attaran is quite right, there are numerous paragraphs, ranging from (a) through (i), under subsection 15(1). That would be about eight or nine. In answering that, Professor, I'd be particularly interested in knowing if you normally get more detailed points, like paragraph 15(1)-whatever, and if this is a variation from that pattern that arose in this case.

And then, of course, I'm throwing it open to you as well to point out any other violations that you can point to. Obviously I'm referring to the Access to Information Act itself, because that is the document that our mandate allows us to act on.

Thank you.

[Jeff Esau]

What the Access to Information Act says is that the government is lawfully able to withhold information, but that such exemptions must be “limited and specific”. In other words, the law does not contemplate being able to throw blanket exemptions over certain documents.

Section 25 of the act is what is called the severability principle. That basically means that if there is any portion of a record—and we talk about paper all the time, but it also applies to audiotapes and all the rest of it—that can be released without doing the injury test that would allow you to withhold it, that must be released.

The law affords a right of access. That's the first section of the act. The fundamental import of the act is to make that access affordable. Anything that restricts it has to be very specific, and for very good reason.

There are also time limits there. In other words, something that is secret and withholdable today might not be in a week's time. It has to be revisited every time.

There is one thing that I'm going to be very interested in. I'm going to get a copy of what was released to the professor, because that's the redacted version of it. Apparently the phone call I got from DFAIT yesterday was that my copy has come in. I'm going to be very interested to see if, in light of some of the controversy, they've changed some of it and have reconsidered.

Nobody's perfect. The Information Commissioner will go in and discuss with the people who know what is injurious and what isn't, and will come up with a workable rationale of what should be withheld and what shouldn't be. We can't take the human element out of it, but the specificity is absolutely fundamental to the right of access.

That's my shot at it.

[The Chair, Liberal, Tom Wappel]

Go ahead, Professor Attaran.

[Prof. Amir Attaran]

I believe the fundamental illegality here lies at the interface between section 15 and its various subheadings, which were not indicated precisely, and as Mr. Esau said, the law says they should be indicated precisely when they're used. The violation lies at the intersection between section 15 and section 67.1, which is the criminal law part of the act. Subsection 67.1(1) reads: “No person shall, with intent to deny a right of access under this Act,” and continues in paragraph 67.1(1)(c), “conceal a record”. I believe records were concealed.

I did not mention in my chronology a detail that is probably relevant at this point. On April 23 Madame Sabourin gave the CD to me containing the various Afghan human rights reports--not the U.S. one, which is still not answered. On the night of April 23 I reviewed those documents that had been given to me earlier in the day, and I found the excisions very heavy-handed. I wrote to her on the night of April 23, saying that I would like her to reconsider the excisions that were made and that I did not believe them to be lawful exercises of the act. In other words, I put her on notice that I believed an illegality had taken place. I offered to her to re-evaluate those excisions and get back to me within 24 hours. She got back to me on April 24, saying that the excisions would be maintained.

Why is that important? To the extent that you could say an accident occurred, that something was excised that shouldn't have been, and that it would have been an illegal concealment under section 67.1, I expressly asked for a reconsideration. The reconsideration was that we will withhold exactly what we've withheld. Therefore, it was not accidental.

[The Chair, Liberal, Tom Wappel]

Thank you.

On the plus side, I suppose, she did answer you within 24 hours.

[Prof. Amir Attaran]

Yes, she did answer within 24 hours.

[The Chair, Liberal, Tom Wappel]

Thank you.

We now go to Mr. Pearson.

[Glen Pearson, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

Let me say at the outset that I'm glad we waited for this.

I've done a lot of human rights work in Africa over the last couple of decades, and in the last decade in Darfur especially. I find it troubling--and I thank you for driving home the fact, Professor--that while we spend all these hours, and often we're here.... I'm the newest member of Parliament in this group. We talk about policy and ideas and everything else, but in the end it is about these very people, and in the hours we have been doing this I can't envision what's been going on in the lives of these people who have been detained, perhaps improperly, or perhaps even tortured. I thank you for driving that home to us.

I have a question about the troops. I come from London, Ontario, and this last weekend all the Royal Canadian Legions from Ontario gathered for their biannual conference in London. I was asked to speak at it. The deputy minister for Veterans Affairs was also there. In meeting with many of the troops afterwards who have come back from Afghanistan, I found there was a general disillusionment among these troops in that they were not aware, although they have been made aware since they came home, of the U.S. report of human rights, the Afghan Independent Human Rights Commission, and the U.K. human rights reports that actually pointed to torture, sometimes killings, and other things.

We're talking about information here, and that's what we're about. It's important that we all support our troops, and all of us here want to do that.

But Mr. Esau, from your travels or discussions, what knowledge might our own troops have in that area of the world about these very things that we're discussing so much here?

[Jeff Esau]

I think it depends on the level of the individual. We talk about troops as being a homogeneous group, but actually there's a very strict hierarchy and there's a need-to-know aspect. You don't want the master corporal who is riding in a convoy on a Coyote to be concerned about these other issues; you want him to be trained, to be knowledgeable that there are going to be bombs on the side of the road that'll go off remotely, or whatever, and that's what you want focused on.

The answer to that question is in the rules of engagement that are issued by the Chief of the Defence Staff on behalf of the government. They describe the situation you are going into and the levels of force, the escalation of force, and the parameters on the use of force for you. In fact, soldiers carry around a little card that tells them that's their authority to shoot or not shoot, or whatever.

The results of the information requests that I've got back from DND about what their level of knowledge is led me to understand that there were basically two briefings given to people who were deployed. They were on the rule of law, international law, and the laws of war in general terms.

[Glen Pearson, Liberal, London North Centre, ON]

In fact, a lot of them don't have what's happening on the ground and what these human rights groups have reported--including the State Department in the United States--about these killings and tortures. Am I right to assume that Canada does not produce an annual human rights report?

Maybe, Professor, you would know. I know you talked about DFAIT doing its own, but do we do that in Canada? Does the Government of Canada--

[Prof. Amir Attaran]

I think we do produce human rights reports. This is an example of one, this “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”.

If what you're asking is whether we produce a report that draws together all countries between two covers, we don't, but that's hardly necessary. What is necessary is timely, accurate information about human rights, whether it's between two covers or not.

In the United States, the U.S. State Department does produce annual human rights reports for most countries, if not all, and those are freely available on its website. In fact, the U.S. State Department report reads quite similarly to the Canadian one on Afghanistan. I don't mean to be flippant, but if you were looking into other offences that might have taken place, plagiarism might be one.

It's very clear that the Canadian report is patterned on the U.S. version. Nothing is wrong with that, despite my joke; it's actually perfectly appropriate. If the U.S. version represents accurate observations of torture, why shouldn't the Canadian version? It is a sign of the Department of Foreign Affairs' head-in-sand mentality on torture and other human rights abuses that the reports the U.S. puts freely on the website are the ones our bureaucrats keep secret.

I can add one other thing to that--

[The Chair, Liberal, Tom Wappel]

Could you be very brief, Professor? We're beyond the time.

[Prof. Amir Attaran]

Very briefly, this cultural difficulty in DFAIT really does need to be addressed. If we ask ourselves how the Maher Arar situation arose, how the Zahra Kazemi situation arose, the Mohammed Alatar situation, the William Sampson situation, the Huseyin Celil situation--all of these are instances in which torture or killing took place, or are very strongly believed to have taken place, on Canadian citizens, and DFAIT has maintained a pusillanimous attitude on disclosure of information.

[The Chair, Liberal, Tom Wappel]

Thank you. We'll go--

[Jeff Esau]

If I can add to my earlier comments about supporting the troops--and I hear what you're saying, and people can be disillusioned and stuff--I think there's very much a danger of compartmentalization of some of this knowledge, and I'll give you an example.

With reference to the report we're all talking about today, while I put a request in and I got the response, actually, on May 14, my request was to the Privy Council Office. I asked for any annual assessments for 2006 held or generated by PCO concerning Afghanistan's human rights records or performance, and the response I got back was, “A thorough search of our records under the control of the Privy Council Office was carried out on your behalf; however, no records relevant to your request were found”.

What it's saying is that it never got that report, so in developing rules of engagement and how troops and other people who are going to these places are dealing with the highest level of government, the committee that supports the cabinet has not seen that report, if I read this correctly. This is May 14; the clerk can have this too.

[The Chair, Liberal, Tom Wappel]

This is fascinating. But I do want to give the members an opportunity to ask their questions. You could perhaps piggyback a response to whatever questions are asked.

I'll go to Mr. Stanton now.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, Mr. Chair.

Professor, you may have said this in your presentation, but what is your specific purpose or motivation behind making these requests?

[Prof. Amir Attaran]

I am a professor, and my job is research, particularly as I hold a Canada research chair. I am a law professor, as I mentioned, and also duly appointed to the faculty of medicine. My interests are human rights and democratic development. Afghanistan is obviously a situation that implicates both those concerns.

[Bruce Stanton, Conservative, Simcoe North, ON]

Do you mean you're using it at the academic level, at the university and so on?

[Prof. Amir Attaran]

I'm sorry?

[Bruce Stanton, Conservative, Simcoe North, ON]

It's at the academic level, at the university--for reports or research, as you say.

[Prof. Amir Attaran]

That is among other things, yes.

[Bruce Stanton, Conservative, Simcoe North, ON]

You alleged that you believe there was political interference in respect of your applications. What specific evidence do you have to show that is the case?