Evidence of meeting #50 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 document.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I've not been able to form such an opinion, as I've never seen those documents.
Liberal
The Chair Liberal Tom Wappel
Well, then, on behalf of the committee, I'm going to ask you, as our counsel, to examine at least what we have, which is, as you say, the redacted version of, let's say, the 2006 document. I'd like you to assume that, for the purposes of your investigation and your opinion, somebody has the entire document unexpurgated. I'd like you to answer for us whether, in your opinion, that unexpurgated document falls within the definition of the documents under the Security of Information Act. Of course you'll need to take your time to do that, and we'll await that in due course.
Thank you very much.
We'll begin our questioning of the witnesses, and that means either of them, with Mr. Peterson.
Liberal
Jim Peterson Liberal Willowdale, ON
We had testimony Tuesday from the august Department of Foreign Affairs and International Trade with respect to documents we had on hand. The issue was whether the revelation of torture or extra-judicial execution in these documents fell within subsection 15(1) as being injurious to the conduct of international affairs if they were disclosed.
Now, for the life of me, Mr. Walsh, I cannot figure out how a revelation of torture and extra-judicial execution, being revealed, could be injurious to international affairs.
I would welcome your opinion as to whether or not the department was entitled to redact those provisions.
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, I haven't seen the provisions, in particular, to which the member is referring, but I should say—
Law Clerk and Parliamentary Counsel, House of Commons
I understand, Mr. Chairman.
Bloc
Law Clerk and Parliamentary Counsel, House of Commons
I have the greatest respect for that journal, but I don't necessarily rely on its reports for all purposes.
Law Clerk and Parliamentary Counsel, House of Commons
But a more direct answer to the member's question is this. As I'm reading subsection15(1) now, as fast as I can, this is a matter, it seems to me, within the discretion, initially, of the head of the government institution to determine that question. I certainly don't feel qualified to determine what the international affairs of the country at the moment or the defence of Canada at the moment may require for which reason this information has to be withdrawn. Mr. Chairman, I simply am not qualified to assess that, although that may be something on which the Information Commissioner may wish to comment. I don't feel I can really answer the member's question, as I understand it.
Liberal
Jim Peterson Liberal Willowdale, ON
But if you were the lawyer advising that department, what would you say? Would you say to them, Mr. Walsh, that you're entitled to say that anything that we think is injurious to international affairs, we can cut it out, we can redact it? Or maybe there's just political embarrassment in having these things come out. Now, is political embarrassment injurious to the conduct of international affairs?
The issue was the government was saying time and time again that they had no knowledge of torture with respect to detainees handed over to the Afghan authorities, and yet they had these reports going back to 2002 saying there was torture being committed.
Law Clerk and Parliamentary Counsel, House of Commons
That's another one of those hypothetical questions, Mr. Chairman. And I'm putting myself in the position of a lawyer in the Department of Foreign Affairs.
It seems to me that your question with reference to political embarrassment is a comment on the domestic political situation, but this section refers to international affairs and in fact there could be international political relations that ought to be considered by the government with respect—
Law Clerk and Parliamentary Counsel, House of Commons
Well, I wouldn't begin to speculate with any specificity, but there could well be dealings among the Government of Canada and third parties--other countries--which, in the judgment of the Government of Canada, could be adversely affected by the disclosure of this document.
I'm speaking hypothetically. Again, I haven't read the document. I'm not trying to defend the position of the government in redacting or claiming this document cannot be fully disclosed. I'm just trying to respond to what I think is the ambit of subsection 15(1), as a lawyer, hypothetically, situated in the Department of Foreign Affairs.
Liberal
Jim Peterson Liberal Willowdale, ON
Would you be prepared to say that political embarrassment at home is not a reason for being able to withhold information?
Law Clerk and Parliamentary Counsel, House of Commons
“Political embarrassment at home”, to use your phraseology, I don't see mentioned as an exception to subsection 15(1), or an overriding consideration, but perhaps I ought to study more closely the terms of subsection 15(1).
Liberal
Jim Peterson Liberal Willowdale, ON
I would ask you to speculate as to what type of injury to international affairs could take place through the revelation of torture by Afghan officials.
Law Clerk and Parliamentary Counsel, House of Commons
Well, it's highly speculative, and, again, I'm not qualified to make an informed comment in this regard, but it's never slowed me down before, I suppose. Hypothetically, the Government of Canada could be engaged in sensitive negotiations with the Government of Afghanistan, or the government of some other country, with regard to the treatment of Canadians within their jurisdiction. It might well be that the position of the government at this particular time--and timing obviously is a consideration in all these matters--in trying to effect a favourable outcome to that situation could be adversely affected by disclosure of this document at that time.
Your question has been posed to me in terms of inviting me to speculate as to the reason the government might not disclose the report, so I'm in the position of defending the government's action here by what I'm saying, highly speculative as it is. One might well mount arguments of the kind you're implying to suggest why the documents should be disclosed, but you haven't asked me to go there, so I'm not going there.
Liberal
Jim Peterson Liberal Willowdale, ON
What type of study must an information officer do in a department in order to say this particular statement in a document can be cut out? What type of legal reasoning must go on?
Law Clerk and Parliamentary Counsel, House of Commons
On behalf of the Information Commissioner, I think he might have some more cogent comments to make on this, as his recent report would seem to be addressing that very issue, but it seems to me, as legal adviser to a department faced with an application under this act, my advice to the department would be that it must respect and adhere to the provisions of the act and the objectives of the act, not simply reading the letter of the law and seeing where it is it can find a slice of light to get out of it. It ought to respect what the purpose of the act is and make every effort to disclose information that is sought, in keeping with the spirit of the act.
Liberal
Jim Peterson Liberal Willowdale, ON
And the spirit and purpose of the act is to ensure that we are an open, transparent government and society.
Law Clerk and Parliamentary Counsel, House of Commons
That's correct, Mr. Chairman. The expression “freedom of information” is often used in this context, but I think it has been understood from day one why you have these exceptions in here, that there naturally would be a conflict between the disclosure of a given document and the interests of the country--not just the government of the day, but the interests of the state--and that this section is an attempt to put a constraint on disclosure in recognition of those interests that may run against disclosure of a document. The Information Commissioner, far more qualified than I am, is the person who is charged with addressing those issues.
Liberal
The Chair Liberal Tom Wappel
Thank you, Mr. Peterson.
Commissioner, did you want to make a comment on the question that Mr. Peterson asked?
Robert Marleau Information Commissioner, Office of the Information Commissioner of Canada
The only comment I would make, Mr. Chairman, is that subsection 15(1) is a discretionary exemption. In the course of an investigation by our investigators, we would clearly challenge the rationale that was applied in selecting subsection 15(1). We can share that rationale if we accept that it has been applied correctly, and if it was not applied correctly we would first pursue the disclosure of that section. Quite often that occurs because we have challenged the rationale. Then it could be a legal opinion that we are in fact challenging within a department.
So I think it's important to note that subsection 15(1) is discretionary. It's not absolute. A lot of discourse in the context of the investigations takes place, such as “Why did you put this?” and “Why did you invoke that?” and “Can we see the rationale?” and “Can we see the legal opinion?”, or “Well, maybe you've gone too far here.” That kind of exchange takes place at the investigative level. Ultimately, it ends up on my desk by way of a report.
