Information & Ethics Committee on Nov. 3rd, 2009

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Back on June 11, 2007, in a public accounts committee meeting, there was testimony from the officer in charge of the ATIP section for the RCMP, on a file, by the name of Michel Joyal, who appeared before the committee and made some very serious allegations. He stated that on an access request, he received a call from a deputy commissioner, Deputy Commissioner Gauvin, who then requested that he bring his file and then met with him in the commissioner's office—the commissioner of the day was Mr. Zaccardelli—with several other officials. Commissioner Zaccardelli was not there, but Deputy Commissioner Gauvin was there and several of his officials. They had prepared a separate docket for release--not the ATIP docket documents but their own--and attempted to do a switcheroo, which Mr. Joyal refused to do.

This was confirmed in testimony before the committee by Superintendent Christian Picard.

This is our federal police force. These were very serious allegations that touched on a deputy commissioner directly and, indirectly, the office of the commissioner.

Was there ever an investigation initiated? I understand that there has to be a complaint on an ATIP. If there wasn't, this is of tremendous concern.

We also heard testimony that documents would at times go missing, or would be improperly labelled so it would be difficult or impossible sometimes to find them or access them.

If there wasn't an investigation of these very serious allegations, is there a mechanism...? It's not an actual ATIP complaint. It's a complaint regarding the conduct. With the legislation passed in 1999, it would appear that this sort of action would be criminal in nature under the amendment to the legislation.

What has happened with this, and how would one proceed?

[Suzanne Legault]

Mr. Chair, I'm not familiar with this case in particular, but the fact is that if there were to be a complaint to my office in relation to this matter, it would be confidential. I would not be in a position to comment.

In surmising from the comments of the honourable member, it seems to me that there are ways within institutions to actually disclose wrongdoing. This would seem to me, under the circumstance, to be more appropriate, and it would be to a different commissioner.

If there is a matter of specific complaint in relation to the destruction of records or the concealment of records, or the counselling and concealment or destruction of records under section 67, then we would conduct an investigation. However, I would say to the honourable member that this provision in our legislation probably needs to be amended, following the Federal Accountability Act, because it still makes reference to the Attorney General and should probably make reference to the Director of Public Prosecutions.

There has also never been such an investigation conducted under our legislation. What I can share with members of this committee is that I am actually looking into this specific provision and how we would conduct an investigation in partnership with, perhaps, the Attorney General, as the law currently states, or the Director of Public Prosecutions. I have engaged in these types of discussions this summer because I am concerned about how it would actually be applied in practice, as it has never been done.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you. That's quite helpful.

I've looked up some information in a report called, Fallen Behind: Canada's Access to Information Act in the World Context, by Stanley Tromp in 2008. He did in fact find that of all the Commonwealth countries, the 50-odd countries, there are only two that do not provide for independent review of the citing of cabinet confidence: South Africa and Canada.

So just as his report is called, we've certainly fallen way behind. But even more interesting, what we find among Commonwealth and OSCE countries is that the average request response time is two weeks, and in many countries it's just 10 days.

How is it that virtually all western democracies are able to do this in 10 days to two weeks, yet in Canada, with this new mechanism of using the PCO, so that it's in PCO consultations, it's now taking as long as a year?

[Suzanne Legault]

Recent pieces of legislation at the international level have a very strong compliance model. When we talk about our act having a weak compliance model, this is what we are talking about. They have specific times for responding to requests and specific times for extensions. If you want to go beyond the extension provided in the legislation, which is usually a short timeline, you have to get approval or have a review to get a further extension. Similarly with consultations, there are very specific timelines, including for investigations and decisions to be made on investigations. So that's the difference.

I was in Mexico last week; people do not like me using the Mexican example, but their average turnaround time is 8.5 days.

You know, you have to put it in the context of the federal government. In Canada, we're a modern democracy. We have complex files. I understand that it does take longer, because we do have a complex system. But the fact that there's a very weak compliance model actually generates excesses in terms of extensions of delays.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Madam Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair.

Ms. Legault, I just want to go back to the minister's response, because it was extremely frustrating. To me it seemed like a total waste of time, having spent time in this committee and working together on quick fixes and examining witnesses at great monetary cost to the taxpayers of this country, including flying witnesses in, and then to get a response, which Mr. Marleau, in his testimony, was kind enough to point out to us, amounted to 300 words, and to be dismissed out of hand.

I guess I do want to ask you this question. The minister states that the Access to Information Act is a strong piece of legislation. Would you agree with that?

[Suzanne Legault]

The way I think about the Access to Information Act--I remember that Monsieur Marleau used this expression in his opening remarks in the spring—is the same way I speak about our legislation internationally: I consider our legislation to be the grandmother of legislation.

So yes, it does have some fundamental tenets that are very well enshrined. And we do have, let's face it, the benefit of having implemented the legislation within our institutions for 26 years. In that respect, we are ahead of many other countries.

Legislation is not sufficient: that being said, the act has fallen behind. Stanley Tromp's piece is actually very accurate, because we have fallen behind, not only internationally but also compared with our provincial and territorial counterparts, whose legislation has either been amended recently or has come into force after our own federal legislation.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

Would it be fair to say that the act, because it's so old--to use your grandmother analogy--although it's been described as perhaps significant...? “Significant” isn't always a positive thing. You can have some significant impacts that are negative.

Mr. Marleau also testified that what he sees happening, because we haven't changed the infrastructure, meaning the actual legislation, and updated it, is that we are now seeing the Federal Accountability Act causing the Access to Information Act itself to buckle.

Would that basically be a fair assessment?

[Suzanne Legault]

As I said before, we've added some institutions, but the compliance model has not been changed. There is no public interest override; there is no harms test; there is no order-making power; and there is no specific timeline for extensions or consultations. In my view, these are important amendments that we need to have.

There is the duty to assist, which I consider as probably the most positive addition in the Federal Accountability Act, in terms of it imposing a positive legislative duty on institutions to assist requesters. I think that should make a difference.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Going back to his letter, I must confess, I found it bizarre to read one of the rationales for not even elaborating on why he disagreed or why the justice ministry disagreed. It says:

Still other recommendations would involve increased oversight and procedural and redress reforms including, for example, requiring a Parliamentary review of the ATIA every five years....

Is there something I'm missing, or is there a problem with that? Would that not be a good thing to help us avoid trying to fix something that's over a quarter of a century old by reviewing it every five years and updating it because of technology?

[Suzanne Legault]

Having a parliamentary review was one of our recommendations, one of our 12 quick fixes. I think it's totally important to have a parliamentary review of important pieces of legislation as a matter of course.

[The Chair, Liberal, Paul Szabo]

One more question only.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

I asked Mr. Marleau the following and will ask you for your opinion of it too. Based on what we've done and the fact the minister responded by saying that more consultation was required, what did we as a committee miss the first time around, in terms of witnesses, providing information, analyzing information? I ask just so that we can avoid wasting time.

[Suzanne Legault]

I think this committee is the master of its own process and procedure; therefore, it is entirely up to this committee to make that decision. It is really not for me to comment.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Madame Freeman, s’il vous plaît.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

A minute ago you answered fairly clearly. The Act is said to be outdated because it has been there for 26 years now. I think committees have been looking at it since 1987. There have been various initiatives to improve the Act, and several motions have been introduced. I introduced a motion myself asking that the government introduce a bill reflecting what Commissioner Reid had already prepared. It went nowhere. When you were asked about the need to completely rewrite the Act, you said you were confining yourself to the 12 recommendations.

Do you think those 12 recommendations are sufficient to protect the Canadian public's access to information?

[Suzanne Legault]

What I said earlier, if I may clarify it, is that I definitely support the 12 recommendations. When we made them, in the spring, it was really what we call quick fixes, things to be done urgently. That doesn't mean that we do not support a more thorough-going reform of the Act. What is important to us, given that there is a minority government, is to have something quick and effective that could be put in place fairly quickly. That being said, a more thorough-going reform would be appropriate, in my opinion.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

In response to all of Commissioner Marleau's recommendations, which the committee examined for several weeks, the Minister said he did not want to expand the scope of the Act. What are your comments on that?

[Suzanne Legault]

I think that all areas where public funds are spent should be covered by an access to information scheme. It is very simple: everywhere that funds are spent by the government, wherever it is, whether in administering the courts, in administering parliamentarians' expenses or in any body that uses public funds, the Act should apply.

[The Chair, Liberal, Paul Szabo]

Pardon me, Madam. Mr. Dechert has a point of order.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Yes, Mr. Chair. Earlier today you ruled against Mr. Del Mastro on the basis that in his comments or his questions he was not referring directly to the commissioner's report and therefore they weren't relevant. You ruled that out of order. That was sustained by the majority of the committee.

The last several rounds of questions have dealt primarily with the minister's letter and not the commissioner's report at all, so shouldn't the same ruling apply? Either it's a member's time and they can talk about whatever they want or it has to be relevant to what the witness is discussing and is here to report on.

[The Chair, Liberal, Paul Szabo]

The common element in all of it is the Access to Information Act, whether it be the response of a minister, an annual report and its report on the operation of that act, or whatever.

I do understand that some focus may be brought to this, but we are still in the midst of assessing how we move forward on it. I would also indicate to you that I don't recall that the chair has ever invoked a relevance opinion unilaterally. It has come from members, as it does in the House. You rarely would see the Speaker rise when a member is speaking and suggest that the member is not being relevant. It is pursuant to a point of order raised by an honourable member.

In this regard on these questions, that has not happened, and I'm not going to....

So on your point of order that the line of questioning, presently by Madam Freeman--

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Ms. Simson and Ms. Freeman have both--