Information & Ethics Committee on March 30th, 2009

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Lemay, you have the floor.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

I read your presentation and heard your remarks, Mr. Drapeau. I also listened to what Mr. Conacher had to say. I find the presentations interesting.

Subsection 2(1) of the act reads as follows:

2.(1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public [...]

There must be a purpose to whatever is stated in legislation. That is an important principle that is regularly mentioned by the Supreme Court. Based on your text, and Mr. Conacher's remarks, I would like to know whether it is a shortcut to say that government employees are causing the problem. Whether the Liberals or the Conservatives are in power, there is always someone causing a problem somewhere, and people have to wait two years to get a response to their request. It is all about political will.

[Prof. Michel Drapeau]

If a prime minister of whatever political stripe issues a directive, as Mr. Obama did on his first day in office, that will definitely be helpful. However, the fact remains that it lies with government employees to deliver the goods, to ensure that the spirit and the letter of the law are respected. I worked with a number of ministers in my former position in the Department of National Defence. Ministers are not involved in the day-to-day administration of this act. The people responsible for ensuring that the spirit and the letter of the act are respected are the public servants within the departments, starting with the deputy minister. I'm absolutely convinced that so far not only have there been no penalties if someone fails to comply with the act or asks for a 210-day extension, there have been no consequences at all.

Should a very clear, categorical directive from the clerk or deputy ministers be issued very broadly? Based on my 25 years of experience with the act, I would say no. So far, public servants do their best, but they know that if they fail to meet the deadline by one or two months, there will be no consequences for them at all.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

If I understand correctly, and Mr. Racicot will correct me if I am wrong, the act provides for certain time limits. Could people not simply systematically turn to the Federal Court to point out to the government that it did not respond within the time limit?

[Prof. Michel Drapeau]

That could certainly be done. When requesters do not get a response to their request within the 30-day period set out in the act, the act refers to this as a deemed refusal. The only option for requesters in this case is to complain to the commissioner. If they do that, they will have to wait two years before they get an answer back. And if they are not satisfied with the answer and if they opt for judicial review, that will take another year.

In light of this situation, we would like people to be able to use this act without being lawyers or having to go through a lengthy process. We want ordinary citizens to have this right, not lawyers or the privileged members of society. This is their constitutional right. At the moment, the procedure is not only cumbersome, it is paralyzed.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Exactly. People listening to us today or who read this article could write to the Defence Department and ask for information regarding the tanks stored in Montreal within 30 days. This is how the system should work, but it does not.

[Prof. Michel Drapeau]

Let's assume that there are no exemptions or exclusions in the information requested.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

That is what I am saying.

[Prof. Michel Drapeau]

You asked for the information, and you should get it. But that is not what happens.

[Duff Conacher]

Almost anywhere in Canada, if people park their automobiles in a place where it is illegal to park, they have a very high chance of getting caught, they will face a penalty, and the penalty will be collected or imposed within a reasonable time. We don't have an access to information system that works that way, and we need to. Across the country, if people could park illegally and not get caught, they would, because there wouldn't be a penalty. They wouldn't be caught, they wouldn't be publicly identified, and they wouldn't have to pay any price.

So multiple changes have to be made to the system. Part of the changes are...usually the signage is very clear that you're parking illegally. It's not clear to many public servants what can or cannot be released. The only way to clear this up is to give the Information Commissioner very broad powers to set all sorts of precedents, with decisions, about what has to be disclosed, require every institution to routinely disclose every document they create on the Internet at no cost--it can be done very easily these days--and maintain a public list of all those records. You reduce the requests where there are complaints. If there's a penalty for withholding the document and someone has clearly been identified as the person who made that decision and they'll face a significant penalty--like half a year's salary--as a fine, you'll see them stop doing it. That will change the culture--

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I agree with you, Mr. Conacher.

[Duff Conacher]

--just as it has in every other area of regulating human behaviour in society since society began.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I will give you time to reply, Mr. Racicot.

[The Chair, Liberal, Paul Szabo]

That will be your last question.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

It is all very well to set time limits, but if the government does not meet them, where does that leave me as a citizen?

[Marc-Aurèle Racicot]

That is why we have a commissioner, an ombudsman. Under the system we established in the early 80s, the ombudsman takes the citizen's complaint without going through all the paperwork of lawyers and clerks. Ordinary people make their complaint directly to the ombudsman, to the Information Commissioner, who has full investigative powers. The commissioner may go to any department or institution and ask people there to tell him why the deputy minister cannot meet the 30-day time limit in that department.

He then reports to a committee which, in turn, may impose penalties and criticize the department. If the commissioner becomes a court and we make this into a legal process, the commissioner will not be able to go into the department. He would have to keep his distance. Lawyers will do that instead, and this will result in case law rather than in comprehensive investigations.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Mr. Chair.

Thank you for being here today, gentlemen. Congratulations on your anniversary, and to Madame Drapeau as well.

I want to continue this discussion. Mr. Racicot, you were just describing a situation where the commissioner could take some action, but I think, Mr. Drapeau, you might have mentioned that they have from time to time done those kinds of things you were just describing. Why don't they do it more regularly or as an everyday practice of the office of the commissioner?

[Marc-Aurèle Racicot]

You'll have to ask the commissioner why they're not using all their powers.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Could you describe instances where they have done those kinds of things you just mentioned? Are there any examples of this?

[Marc-Aurèle Racicot]

I remember in the past when I was there.... When they conduct an investigation, if they're not happy with the answers they get and they want to get to the basics and understand what's happening in the department or institution, they can subpoena the person to appear before the commissioner. They can ask them on the record what's happening in their ministry. Then they can understand.

I think the role of the commissioner is to show what's happening and help the department do better. That information is then put in an annual report and a special report to you, and then you can take action. Without that information from the commissioner, you know there's a problem but you don't know why there's a problem.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Conacher, you have a different take on this, I gather.

[Duff Conacher]

Yes.

The Ontario commissioner does the same through the mediation process. They have many mediators. Most of the complaints are solved through mediation. But does the institution or minister know the commissioner has order-making power? Resist mediation, and if you're wrong and you're doing something illegal, the order is coming.

The problem with Ontario still, though, is that there's still no penalty for violating the act. Unfortunately, that's far too common in so-called good government laws. Unfortunately, governments are quite happy to impose penalties for violating other laws, but not good government laws. We need those penalties. We need them for the public to ensure they follow the rules of society. We need them for governments to ensure they operate in ways that are good government as opposed to bad government.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I hear some different analyses from Monsieur Racicot and Monsieur Drapeau and you, Mr. Conacher, about the effectiveness of the Ontario system. Mr. Drapeau, I believe, said that a lot of orders end up in court in Ontario. Has that been your experience? How would you respond to that criticism of the Ontario courts?

[Duff Conacher]

I don't know what the definition of “a lot” is, but I don't think it's very many as a percentage of the overall number of requests, and most are mediated.