Information & Ethics Committee on May 4th, 2009

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

Other jurisdictions have that, so it would be interesting to know.

Minister, in our system I think it is possible for the government to request a standing committee to draft legislation, and I'm wondering if you'd be prepared to take a recommendation forward that would ask the government to ask the Standing Committee on Access to Information to draft new access to information legislation and table it in the House.

[Rob Nicholson, Conservative, Niagara Falls, ON]

In terms of changes to our parliamentary system, turning over the drafting of legislation to the committee would be a huge change to what we have now. I think the system of having the government consider recommendations and then table information works well now, but that doesn't stop you, Mr. Siksay, or others from introducing private members legislation on any particular issue.

We certainly have that open to us, but I think the drafting of legislation on behalf of the government probably should remain with the government. In fact, I'm quite confident that that's the way it should be and should continue to be.

[The Chair, Liberal, Paul Szabo]

Go ahead, Mr. Dreeshen.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much, Mr. Chair.

Good afternoon, Mr. Minister.

I have a couple of questions on sections 23 and 24 from the discussion paper that I want to go through. The Information Commissioner proposed to add an injury test to any exemption that does not already have one. One such exemption is in section 23, which I'm sure you know well. It protects information covered by solicitor and client privilege.

Am I right that in the private sector, and also in other access to information legislation in Canada, there is no requirement that an injury test be met before the solicitor and client privilege can be used?

Also, it seems fairly obvious to me what the injury would be from failing to give adequate protection to communications involving this legal advice between a lawyer and a client in an institution covered by ATIA. Could you comment on that, please?

[Rob Nicholson, Conservative, Niagara Falls, ON]

If you don't mind, Mr. Dreeshen, I'm going to ask Mr. Kratchanov to say a few words with respect to the whole question of solicitor-client privilege.

[Denis Kratchanov, Director and General Counsel, Information Law and Privacy Section, Department of Justice]

I think the recommendation you're speaking about was made by the former commissioner, Mr. Reid, and not by Mr. Marleau. On the subject of solicitor-client privilege, the laws in the provinces vary. Actually, there's a case now before the Supreme Court in which the issue of the relationship between public interest and the application of solicitor-client privilege faces the court, from the Ontario legislation on access. Obviously the decision of the court will bear influence on the laws across the country.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you.

I'll move on to section 24, then, as well. One of the Information Commissioner's proposals that concerns me is his strong recommendation to repeal section 24 and schedule II in their entirety.

From what I understand, section 24 was put in place to provide a higher level of protection than that afforded by the other exemptions in the act. Further, I would think after perusing the list of provisions protected by section 24 that many of them pertain to national security, law enforcement, and the protection of personal privacy.

At the same time, I understand that schedule II, where the confidentiality clauses in other statues are listed, now contains considerably more than it did in the mid-1980s. Undoubtedly this is an issue that our committee should examine. However, given the types of highly sensitive information that are protected by this exemption, I frankly don't understand how one reaches the conclusion that the whole exemption needs to be abolished. Certainly I can't envision adopting an approach without there having been an extensive and in-depth research and consultations with affected entities such as Statistics Canada, Canada Customs and Revenue Agency, CSIS, and so on.

Minister, would you agree with me that there must be some alternatives other than the complete repeal or the status quo?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think you've raised a couple of very interesting issues. We're always trying to do that balance, which is to protect national security and at the same time ensure that people have the right to know pertinent information, either as it relates to them personally or to issues across the country. It's not only from the standpoint of national security; this piece of legislation has to work hand in hand with the Privacy Act as well. They both have to work together. On the one hand, people have a right to assume that certain information about them is kept private. On the other hand, there is the public right to know. It's that balancing act.

One of the things you indicated in your question is that you'll have to become involved with stakeholders on this, and indeed you will. You have to let them have some input on this before we would go holus-bolus and propose a piece of legislation that would do something such as the complete abolition of section 24.

[The Chair, Liberal, Paul Szabo]

I'm sorry, Mr. Dreeshen, but Mr. Poilievre would like to get one quick question in before the minister excuses himself.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Ms. Simson asked how many new exemptions came in under the accountability act. The answer is one. There was only one new exemption that had not previously existed, and that exemption was recommended by the Auditor General and unanimously supported by the committee. All the other so-called new exemptions already existed before, because the agencies to which those exemptions apply were not even covered by ATI at all before the Federal Accountability Act, meaning that there was a 100% exemption of the whole body. That answers Ms. Simson's question.

My question is, today when you're here listening to members' comment and demands for more access to information, does it not make you wonder why none of them was in favour of going as far as we were willing to go under the accountability act, and why they actually wanted to take organizations off the list that we were trying to add when we moved forward with Bill C-2?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's actually a very good point, Mr. Poilievre. I have to say that in your role as parliamentary secretary to the President of the Treasury Board you did an outstanding job in moving forward. I think Canadians can be very grateful to you for all the work you did to bring forward that Federal Accountability Act. I know it wasn't easy.

With respect to why opposition members didn't want to include a number of crown corporations and a number of federal entities, I think I would prefer to leave it to them to try to explain that. I think they'd be in a better position than I would be.

[The Chair, Liberal, Paul Szabo]

Minister, thank you for sharing some of your time with us.

If I may, I'd like to leave you with a final thought. I am a big fan of the judicial axiom that justice delayed is justice denied. We've heard and we've seen in the report cards that 30 days is the exception; it's not the norm. We have probably as many administrative hurdles as legislative hurdles here. I think you can see that some of the items Mr. Marleau has brought forward really relate to how we deal with the backlog.

I know it's not your responsibility—it's Treasury Board's—but I would strongly encourage you as a cabinet colleague to see what you could do to facilitate both administrative and legislative amendments that will make this act work in the manner Canadians expect and deserve.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. I'm glad to appear before the committee, Mr. Szabo. Thank you for all your input and comments.

[The Chair, Liberal, Paul Szabo]

Thank you, Minister. I know you're leaving now. I should introduce your colleagues.

We have Mr. Denis Kratchanov, who's the director and general counsel, information law and privacy section. Welcome, Mr. Kratchanov. We also have Carolyn Kobernick, assistant deputy minister, public law sector, and Joan Remsu, general counsel and director, public law policy section.

Welcome to you all. Thank you for being here with the minister. I know he was taking down notes briefly, as were you. I understand you don't have any introductory or opening remarks to make, but I welcome any amplification you have on matters we may have covered already, if they come up from the members.

Members still have quite a number of questions, so we're going to begin our second round. Madame Simson and Mr. Wrzesnewskyj may be splitting their time, but they can decide how they're going to work this. We'll start there.

Then we have Mr. Dreeshen. You may want to work out some deal there.

Then it's Mr. Nadeau, and then Mr. Hiebert.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

For all of the witnesses, I have one quick question. We've heard testimony on access to information from a number of witnesses who, without exception, all agree that access to information is deemed to be a basic human right.

In a quick yes or no, would you agree with that statement?

[Denis Kratchanov]

It's not something I've called a human right.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

So your answer is no, you don't view it as a basic human right?

[Carolyn Kobernick, Assistant Deputy Minister, Public Law Sector, Department of Justice]

Mainly the Access to Information Act is a quasi-constitutional statute. It is an extremely important statute that we have to respect.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

So is your answer no as well?

[Carolyn Kobernick]

As we have defined human rights, the answer is no. But is it receiving protection under the Charter of Rights? Yes.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

But your answer is no.

And to the last witness, Ms. Remsu, is it no, you don't see access to information as a basic human right?

[Joan Remsu, General Counsel and Director, Public Law Policy Section, Department of Justice]

No.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

With respect to some of the recommendations in Mr. Marleau's report, we've heard expert testimony from various bodies from various jurisdictions who believe that giving the commissioner order-making powers would help alleviate the backlog; in other words, giving him the ability to make sure information is released without going to the Federal Court.

Would you agree with that statement?

[Carolyn Kobernick]

The only comment I would make on it is that I don't think you necessarily require an order-making power to effect change. I think, as the minister indicated in his testimony, the Department of Justice was able to manage its outstanding backlog within the organization itself. I think other departments certainly have it within their own capacity to respond to the concerns of the access to information commissioner.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Who should be held accountable when a department fails? You're getting upwards of 200 to 250 days as the norm to get information, based on the statistics provided by the commissioner. Who should be held accountable, and how do we get this rectified, when you're dealing with a culture of secrecy? Everybody agrees that there is a culture of secrecy and there has been for many years.