Evidence of meeting #35 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was powers.
A recording is available from Parliament.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Now let's go to the second part of my question. Earlier you said you had no criticism to make of the 10 recommendations. I want to be quite sure I understood that those recommendations suit you.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
There's only one that I'm somewhat reluctant about. It's precisely the one concerning the rejection of frivolous requests. That's why I suggest that it be accompanied by a right subsequently to go to court to have individual rights respected.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Other people have made other suggestions. Let's talk about the quasi-judicial power. Earlier we saw that people use a number of terms on this subject: the quasi-judicial power, the order-making power, the power to compel. No doubt there are others.
You were Quebec's information commissioner and you exercised those powers. I'm not a lawyer—
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
I'm not either.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
In that case, you're a good guy. That's a joke.
Are those different powers, or do those terms mean the same thing? Earlier you gave a brief enumeration. I would like you to explain each of those expressions and to tell us exactly what they mean.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
Quasi-judicial power is an administrative law term, that is to say that it concerns a right that provides for the intervention of a quasi-judge, an administrative judge, who may make an order. In our system, however, quasi-judicial decisions can virtually always be appealed to the courts. So there is respect in the judicial system in place.
You can have order-making power, without being in a quasi-judicial system, which are limited to specific objects. You may grant the power to make orders without making it so the machinery as a whole operates quasi-judicially. That's an adaptation.
Then, at the other end, there is the pure ombudsman model, in which the Commissioner or the holder of the office may only make recommendations.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Do you recommend the quasi-judicial option, or the order-making power?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
The order-making power.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Thank you, Mr. Chairman.
I have a very brief question. It has to do with recommendation six in the frivolous section, as it's coming to be dubbed.
Are there any other jurisdictions anywhere that you know of that define frivolous, or do they all give the commissioner, or whoever is making the discretionary powers, the power to deem something as frivolous?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
In response to your question, it's the case law that has accumulated on the subject and has been confirmed, in certain cases, by the superior courts. I'll cite a specific example: when an individual who is not happy with a decision or recommendation files exactly the same request the following week and repeats it systematically, that corresponds to a frivolous request. It's quite complicated to define that in legal terms. It's a matter of both case law and common sense.
Liberal
The Chair Liberal Paul Szabo
Monsieur Comeau, thank you kindly for your thoughts. I think you've helped us to open it up a little bit more. I have a feeling that in our case, we'll be seeing you again in some capacity because of your experience and expertise. Thank you kindly for your time. I apologize for the brief delay in commencing, but I think we got the important information on the table.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
It's been a pleasure.
Liberal
Glen Pearson Liberal London North Centre, ON
Mr. Chair, when I was asking the questions of the previous witness, I might have implied in my question that the Privacy Commissioner wanted order-making powers. That was not my intention.
I appreciated your gentle nudge, Mike. That was great. I was trying to go by what the witness was saying. So thank you.
Liberal
The Chair Liberal Paul Szabo
Okay, I think we're ready.
Our next witness is Mr. Michael Geist, Canada Research Chair.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Mr. Chairman, I know we're on to something else, but we're all making statements about order-making powers. My recollection is--and the analysts of the committee can correct--that originally Commissioner Stoddart said she wanted order-making powers. Then Commissioner Reid came and said he didn't want order-making powers. Then she changed her mind.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Well, there you go. You see, we have another interpretation. I don't know, but I believe at some point in time she said she wanted order-making powers. I'm not too sure now.
