Information & Ethics Committee on May 31st, 2007

[Bruce Stanton, Conservative, Simcoe North, ON]

Perhaps this is a better way to put it: have there been circumstances where you haven't been satisfied and have chosen to take the department to the court level to say that compliance has not occurred? In that case, what has the court had to say about the way in which the department has applied those provisions of the act?

[Robert Marleau]

I'm advised that we haven't had such a case recently before the courts. But there is a similar case in the annual report--it's similar because no case is the same. It's case nine, which is the CSIS and Maher Arar matter, where they used subsection 15(1).

We went in, reviewed thousands upon thousands of pages of documents, and ended up resolving the complaint. We accepted that some of the exclusions and exemptions were acceptable, rational, and in compliance with the act, and others were not. CSIS complied.

So the requester may not get 100% satisfaction if he had only 50% when he complained. He might get 75% or 80%. The trend in the office is that he usually gets more if he complains.

[Bruce Stanton, Conservative, Simcoe North, ON]

This may be in your report. I just got it today, so I haven't had a chance to look into it.

As an ombudsman-type independent department of an office of Parliament, where are you in being able to resolve those issues amicably between the requester and the department ?

[Robert Marleau]

We have a very high degree of resolution. Ninety-nine percent of the complaints that come to us end up being resolved. They take a little too long, in my view, but 99% are resolved. Only about 1% on average over time end up before the Federal Court.

[Bruce Stanton, Conservative, Simcoe North, ON]

Thank you, sir.

[The Chair, Liberal, Tom Wappel]

Thank you.

Just looking through here I see that Industry Canada went from a D to a B in the last two years--under Mr. Peterson's tenure, I presume.

Welcome, Mr. Roy. You have five minutes.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chairman. I am delighted to see that you have again been elected chairman of the committee. I sat on a committee that you chaired for years.

My question is for Mr. Marleau. This seems to be a case of political interference—you have experienced others in institutions that I shall not name. I sit on the Standing Committee on Public Accounts and I could certainly talk to you about the RCMP.

In brief, this seems to be the culture that reigns. I would like to hear your viewpoint on this, because with all that has happened at the RCMP, it seems clear to the Standing Committee on Public Accounts that, on the pretext of protecting the institution's reputation or in this case, the government's reputation, there is a blanket refusal to provide documents.

My question is as follows: in your capacity as information commissioner you can exert pressure, you have a lot of power, but just how far can you go to have information disclosed? Have you ever imposed sanctions, for example, in order to gain access to documents? The fact of the matter is that waiting times very often exceed the statutory time limits, and in my view, your office is very lenient with the institutions.

[Robert Marleau]

There are two parts to my answer. Firstly, the act states that I am an ombudsman and, therefore, I have neither the power to issue orders, nor the power to impose sanctions. Under no circumstances can I impose fines or cut resources. A degree of mediation is therefore required and, I fully recognize, this is a more time-consuming means of addressing requests. However, as I said earlier in answer to a question raised by another member, our success rate is very high, with 99 per cent of complaints resolved.

As a last resort, a complaint can be referred to the Federal Court. The act provides for the Court to evaluate the case and issue a disclosure order.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

My second question is for Mr. Walsh.

This is the third time in the past few weeks that I have heard you give testimony, and it is this last part that I find particularly interesting. You may not have looked at this issue, but when the committee tables a report in the House, the government must provide its response within a specified time frame. But what can the House do if the government misses the deadline? What can be done when that happens?

[Rob Walsh]

It all depends on whether the House of Commons concurs in the committee report. If a concurrence motion carries, the report becomes an order to the House of Commons. That is what sometimes happens, but sometimes it is simply recognition of the committee's view. It depends on the way in which the report has been written and what has been said. Has a specific action been requested? Has the House of Commons given its consent?

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

I am going to ask you a very direct question. If the committee tables a report in the House but is convinced that one of the witnesses has lied, what options are open to the House if it accepts the report?

[Rob Walsh]

It can initiate contempt proceedings.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

To what effect?

[Rob Walsh]

The House of Commons would first have to issue a resolution stating that there had been contempt. I imagine that the next step would involve summoning the person in question to appear at the bar in the House of Commons to explain the situation. Finally, if no satisfactory explanation was forthcoming, the House of Commons would be able to sanction or punish the individual.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

What sort of punishment?

[Rob Walsh]

It is difficult to say because, in theory, it would involve a visit with The Queen in... I do not have any precedents or examples to give you.

[Jean-Yves Roy, Bloc, Haute-Gaspésie—La Mitis—Matane—Matapédia, QC]

There are no precedents. It has never been done.

[Rob Walsh]

There was one instance, a few years ago, if I'm not mistaken.

[Robert Marleau]

I believe there was one case where somebody was sentenced to prison.

[Rob Walsh]

It is very rare.

We are faced with a problem. As I have said to the committee on a number of occasions, this question raises legal issues relating to the Canadian Charter of Rights and Freedoms. If someone is accused of contempt and imprisoned, it is unclear whether he would be able to rely on the Charter. In my opinion, it is not clear whether the Charter can prevent—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I have a very quick question.

[The Chair, Liberal, Tom Wappel]

Sorry, we do not have enough time.

We have Messrs. Martin, Pearson, and Van Kesteren at the present time.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

I would bring us back to the subsection 15(1) issue. As I understand it, that's for issues of national security, not issues of government embarrassment; and the arbitrary, or perhaps politically influenced, blacking out under that reasoning is what's of most concern to us.

I guess there are three things we were hoping to get to the bottom of. Did DFAIT officials perjure themselves when they came before this committee? Did they contravene the act when they denied the existence of those documents?

My Liberal colleague read out some information, but we now know that the office of primary interest notified Jocelyne Sabourin on March 12 that such documents existed, that they had the relevant documents. By the end of March, they were telling another applicant that no such documents existed. There seems to be a real contradiction here.

Then it took another full six weeks to actually release, as if there were a great deal of turmoil over what to do with these documents prior to their being released to the applicant. So they had them March 12, but I believe they didn't give them to the applicant until April 24. In that interim, we believe people got to them and said for God's sake, strike out anything that says torture, because ministers have been standing up month after month denying any knowledge of torture of Afghan detainees. That's what some of us believe happened, and I don't think it's paranoid.

Under what authority are ATIP coordinators exercising ministerial discretion? From a legal point of view, what gives them the authority to exercise discretion?

[Robert Marleau]

The legal authority is a delegation of authority by the minister under section 73 of the statute whereby the ATIP coordinator exercises, on behalf of the ministers, the authorities under the statute.

[Pat Martin, NDP, Winnipeg Centre, MB]

That's exactly what I was looking for. In your view, would it be more helpful if the ATIP coordinators worked for you instead of working for the department or the minister? Because really they're administrating the wish of the minister. Would that and having your agents planted in these agencies help turn the whole freedom of information system on its head? Wouldn't that be an idea?