Information & Ethics Committee on May 4th, 2009

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

Thank you, Chair.

Thank you for being here today, Minister.

I want to start with a couple of specific questions. You talked about how the Federal Accountability Act extended the coverage of the Access to Information Act. But one of the compromises in that discussion was around the Canada Pension Plan Investment Board. The compromise was that it wouldn't become subject to ATI until there had been discussions with the provinces and two-thirds of the provinces had agreed to its inclusion. Can you update us as to whether these have taken place or whether the government is pursuing those conversations with the provinces?

[Rob Nicholson, Conservative, Niagara Falls, ON]

That might more properly be directed to the President of the Treasury Board, Mr. Siksay, inasmuch as the Federal Accountability Act is under his administration. But I will certainly pass this on to him and will get back to you with whatever information you may require.

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

That would be great, if you could get back to us on it.

One other specific question is that a lot of the act deals with paper release of information, but technology has rather passed us by. Are there plans to change the regulations associated with the act to include such things as CD-ROMS or e-mail?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I think that would be a question for the President of the Treasury Board. On the whole question.... To go back to the justice area, for which I have certain responsibilities, one of the challenges we always have is making sure our legislation is up to date. You get Criminal Code provisions talking about telegraphs and telegrams. We know we have to constantly be looking at that to mirror the changes of technology, but certainly I will pass that on to the President of the Treasury Board.

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

Thank you.

Minister, I understand that one of the changes in the Anti-terrorism Act was to give the Attorney General power to issue a certificate to halt investigations under the ATIA. I'm just wondering if you have ever used that power or issued that kind of certificate to prevent the release of apparently sensitive information.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Not as far as I'm aware, Mr. Siksay.

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

I want to come back to some of the other issues. A number of my colleagues have already pointed out that the Conservative Party did pledge to implement former Information Commissioner Reid's recommendation for reform of the Access to Information Act. There were other commitments made at that time. I'm just wondering if you, as Minister of Justice and a representative of the Conservative Party as well, still stand by the commitment that was made in the platform in 2006 to give the Information Commissioner the power to order the release of information.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The whole matter, as you know, is under review in the sense that we have this discussion paper before you, and we really do want to get your input. We've actually moved forward with a number of reforms in the Federal Accountability Act. In fact, I remember standing in this room with the then leader of the opposition, and he made it very clear that having more accountability and more transparency in government would be a hallmark of his administration.

The Federal Accountability Act has been a huge step forward in that regard. Of course, I supported that when it was introduced, but, again, I'd like to have your input with respect to all the issues. Monsieur Marleau has raised a number of issues, a number of recommendations; I'd like to get it all at once.

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

The other commitments that were made in 2006 by the Conservative Party, Minister, included such things as subjecting the exclusion of cabinet confidences to review by the Information Commissioner; obliging public officials to create the records necessary to document their actions and decisions; providing a general public interest override for all exemptions, so that the public interest is put before the secrecy of the government; ensuring that all exemptions from the disclosure of government information are justified only on the basis of the harm or injury that would result from the disclosure, not a blanket exemption rule; and ensuring that the disclosure requirements of the Access to Information Act cannot be circumvented by secrecy provisions in other federal acts, while respecting the confidentiality of national security and the privacy of personal information.

Granted, you did extend the coverage, and we're all pleased about that. I know the Conservatives are very pleased about that. Mrs. Block constantly reminds us of how pleased we are about that extension of coverage--

[Rob Nicholson, Conservative, Niagara Falls, ON]

She's a hard worker when it comes to fighting crime in this country too.

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

--but there's a long agenda of other issues, Minister, that were part of the commitment of your party at that time, and I think they were applauded by many folks who work in the area of access to information.

Minister, what happens between a well-thought-out opposition platform--and I'll give you credit for that in this particular area--and taking power? Why is it that governments seem to backtrack? Your government as well seems to want us to study and to focus on the limited work that has been done in this area, but not get on with a whole open government agenda, and not get on with making sure that Canadians have access to the information that their tax dollars provide.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I can tell you that it's a challenge in a minority Parliament. I didn't have carriage of the Federal Accountability Act because I was government House leader at the time, but to get that piece of legislation through was a huge step forward. Quite frankly, I would have liked to have seen the thing go through in a month, and you know it didn't take a month. We do have a challenge in a minority Parliament. You know how difficult it is for me to get justice legislation passed. You know how difficult that has been and how difficult it continues to be to try to move these things through.

You're quite right about one thing: we have a huge agenda for this country. It covers many different areas. We're trying to be comprehensive and careful on all of these issues. Again, with respect to the pieces of legislation that I've had tabled before Parliament, it hasn't been easy, but I want you to know that I still remain very determined that our justice legislation, our justice agenda, is going to move forward.

Again, I always look for input. As I was saying to Monsieur Nadeau and others, any input you want to give will certainly be welcomed by me.

[The Chair, Liberal, Paul Szabo]

Excuse me, Minister, the member only has one minute left, so I want to let him get his last question in.

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

Well, Minister, I think you're probably aware that you have three opposition parties that are very keen to get on with dealing with a new piece of legislation on access to information. We've asked for it a number of times for the committee.

Given that, and given that former Information Commissioner Reid gave us a proposed bill, and given that the bill has been turned into a private member's bill in Parliament, so that some of the legislative drafting has already been done, what's the delay?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, I value the input of people like you, Mr. Siksay. I know that you're a thoughtful, careful individual who takes these matters very seriously. Again, I would feel terrible. Let's just say I did bring forward a piece of legislation. I hope you wouldn't be one of the first ones to ask, why didn't you get our input? You put out a discussion paper; why didn't you get our input on some of these issues? This could have been a much better bill if you had heard what we had to say on these things.

I try to be very careful, as you know, on these things, I really do. I welcome any information, any study you can provide on this. Again, I'm very open to.... Every bit of discussion that you can have will take place, and I would like to have your recommendations.

[The Chair, Liberal, Paul Szabo]

I think that's very clear already on the record.

Madam Block, please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you, Mr. Chair.

Welcome, Minister. Thank you for responding to our invitation.

I would like to say that I think the approach we are taking on ATIA is a solid one. As I understand it, the government has used the FAA to make important improvements to the ATIA. On the other hand, as the members of this committee are aware, there remain several key issues relating to the ATIA that were not included in the Federal Accountability Act. If my understanding is correct, this is because these issues are extremely complex and require further analysis and discussion with stakeholders before they will become ripe for implementation.

These issues have been laid out in the discussion paper that your predecessor tabled before the House in April 2006, and this honourable committee has been invited to delve into these issues and present its findings to the government. I for one entirely support this approach and am glad that this committee now has the opportunity to look at these issues in depth so that the government can legislate solutions to them that are well thought out and fair.

Having said this, Mr. Chair, I would like to ask the minister whether he feels that we are ready to move on any of the issues in the discussion paper.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a very interesting question, and I thank you for the preamble to it.

I will say with respect to this piece of legislation that I've had people say to me, you have to change this. I believe this legislation was passed in 1982 and proclaimed into effect in July 1983. They say, it's been around since 1982; we have to update it, we have to change it. And I say, I guess I can appreciate some of those issues. I've gotten provisions into the Criminal Code that weren't even new in 1892, 90 years before that. Very often what you see coming from the government is trying to respond to the change of technologies and trying to move through a very heavy agenda. In our legislation on identity theft, for instance, or on auto theft, for that matter, we're just trying to catch up with the changes of technology.

So, yes, it was a big step forward. I was part of a government in 1984, when this piece of legislation was just coming into effect and just getting going. I couldn't help thinking at the time how cutting-edge this particular piece of legislation was and how important it was for governments and how forward-thinking it is.

That being said, time marches on, there are changes, and quite frankly, I was pleased to see the changes, which I enumerated in part, under the Federal Accountability Act. This is why I was saying to a couple of your colleagues across the table that I'd be very pleased and I think it would be appropriate—and I think it's the right thing to do—to get your input on these.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you.

I consider the work of this committee to be of utmost importance in reforming the Access to Information Act. Included in the work that this committee is going to undertake is a review of the reforms suggested by the Information Commissioner, the key ones of which are analyzed in the discussion paper.

I must admit, however, that I am surprised at the tone of the Information Commissioner's special report. I honestly didn't realize that the proposals in Bill C-2 relating to the ATIA, were “retrograde and dangerous”, to quote the commissioner. But I realize I should probably save these sorts of comments for our next witness, who will be the commissioner. Regardless of the tone of the report, this committee must carefully consider what it contains. I hope that doing so isn't also “dangerous”, Mr. Chair.

In his special report, the Information Commissioner states that “there has been full opportunity for debate, critique and persuasion” and that there are no knowledge gaps. But you are suggesting to us today to undertake more consultation. Could you please explain to us why you believe that more work needs to be done?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think some of the recommendations would have some very profound effects on the way business is done in this country, and it's not just with respect to cabinet ministers, but indeed to all members of Parliament. The proposals that you have seen from now two commissioners are very wide-ranging. This is why I would ask that you have some input on this. This can affect your offices and your role as a member of Parliament, quite apart from cabinet responsibility. I've always believed this is a good way to go: let's have some input on it and get some stakeholders.

Indeed, have your own say as to how it might affect your role. You've been here now long enough, Ms. Block, as a member of Parliament. You're starting to get a feel for what works and what doesn't work and how you can be most effective in assisting your constituents. And I know you are very effective in assisting your constituents. I'd like to know from you how you think this might affect your role as a member of Parliament.

I think all those questions have to be answered.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

I realize that one of the thorniest issues this committee is being asked to consider is that of possible reform of the regime for dealing with cabinet confidences under the ATIA. In passing, I realize that the Canada Evidence Act also plays an important role in this area.

Minister, I know that the discussion paper takes a neutral tone in general, but there is an approach to cabinet confidences described in the paper that appears to be favoured. Is the cabinet confidences proposal that you've put forward in the discussion paper the equivalent to the status quo?

[Rob Nicholson, Conservative, Niagara Falls, ON]

We're having a look at that. One of the issues that would be involved with the exact proposal put forward is that we might then find the whole matter being litigated on a regular basis, as to what is or is not a cabinet confidence. As it is now, there is a certification done by the Clerk of the Privy Council. It is given to the Information Commissioner. I think we should explore that possibility: do we want to start arguing in court as to what is or isn't a cabinet confidence? I indicated to one of your colleagues at the beginning of this that this is one of the cornerstones of the British parliamentary system. This is how our system works.

Again, we raise the issues, you have the discussion paper before you, and I would be glad to hear from you.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Do I still have time?

[The Chair, Liberal, Paul Szabo]

You have a little bit of time, for one more.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Okay.

Along with cabinet confidences, another difficult issue in the Access to Information Act reform arena is whether or not the offices of ministers should be covered by the ATIA. So I was of course not surprised to see a section of the discussion paper dealing with that issue. However, Minister, I was somewhat surprised to see that the discussion paper raises the possibility of extending the right of access to all MPs' offices, when the Information Commissioner has never suggested it.

Mind you, I think I may be able to answer my own question. Would I be right in thinking that the issue of covering MPs' offices was included in the discussion paper because one cannot discuss covering ministers' offices without turning to look at whether the offices of members of Parliament should also be covered?