Information & Ethics Committee on Nov. 3rd, 2009

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

It's mine as well. Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, please.

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

Thank you, Chair.

Ms. Legault, last Friday three organizations that have been very prominent in consideration of access to information issues--the Canadian Taxpayers Federation, the Canadian Newspaper Association, and the Freedom of Information and Privacy Association--sent a letter to the Prime Minister outlining their concerns about the government's response to the committee report and the commissioner's 12 quick-fix recommendations. They've very critical of the government and the Prime Minister for this response and the lack of follow-through on the commitments they made in election platforms.

I want to read one of the sections of their letter to the Prime Minister. Maybe you can expand on it and help me understand what they're suggesting here. They say:

The most constructive thing Minister Nicholson is able to suggest in terms of improving an Access to Information system that is verging on collapse is “enhanced guidance and training” which the minister suggests “can be equally effective to realize continued improvements”.

Can you give me your understanding of “enhanced guidance and training”? Do you see it as something that would be equally effective in realizing improvements to the access to information regime?

[Suzanne Legault]

I think the increase in capacity in training of ATIP professionals within the federal public service is a key administrative improvement that can be made.

I would go further and refer you to the recommendations we made to the Treasury Board Secretariat in our special report of February 2009. We not only suggest there should be training and professionalization of ATIP professionals in the federal public service; there should also be an integrated human resources strategy led by the Treasury Board Secretariat to fill the gaps within the federal public service.

It is true that capacity and training are having a major impact within the federal institutions in responding to requests. As an investigative body we also feel the impact it has on the conduct of our investigations when the professionals within the federal institutions are not properly trained, or there are not enough of them in the various institutions. In our office we've needed to have a clear recruitment strategy in order to fill the gaps within our own ranks.

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

Do you see administrative change as being equal to an improved compliance regime, an improved legislation, in the effect they would have on making improvements to access to information?

[Suzanne Legault]

I think they are equally important. If you have a new piece of legislation but people are not properly trained in administering it, the delivery of the legislative changes is not efficient.

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

If we had that kind of training in place now, would it ameliorate the problems we're having with the access to information system now?

[Suzanne Legault]

I think it would have a positive impact.

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

But it wouldn't eliminate the problems.

[Suzanne Legault]

It wouldn't because it's a multifaceted issue. There are issues with records management, legislation, training, hiring, and capacity. It's a multifaceted problem.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

No further members have indicated that they wanted to speak.

I just had a little discussion with our analyst and researcher about where we are right now and your interventions today on your annual report. Certainly there is a significant overlap with the business item that this committee has been engaged in for the last two meetings, which is the response of the justice minister to the committee report on quick fixes to the Access to Information Act.

In the middle of that consideration Mr. Martin made a motion, which still has not been disposed of, but it is in fact not a new item of business. That happens to be a motion within an existing item of business, being the response of the justice minister to the act.

So we haven't quite resolved that and how the committee is going to deal with it. Certainly the motion is one aspect. It basically speaks for itself. It's just that the committee is not happy with the response, but that doesn't do anything to help us with the act.

This item will be on our business for Thursday. I've asked the researchers to prepare a list of items that are still outstanding concerns.

I am very concerned, Acting Commissioner, that the jousting that is going on not only among members but maybe even between the commission and the prior minister, etc., is not a healthy approach to moving forward on constructive measures related to the Access to Information Act.

I am very concerned that this could simply bang the gavel and the subject matter's closed. It's basically that the minister at this time is not open to any changes and the committee has put itself in a position where we can just say we don't agree with you. But this doesn't help the outstanding issues that we have.

I don't think it's in the best interest of the public and I don't think it's in the best interest of the committee that we terminate this discussion. I said earlier that we need to vet some of these things, whether it be the cost recovery issues that Mr. Dechert has been raising since the very beginning or some of the issues that you have raised today with regard to double-counting problems.

It's simply the fact that there are proxies out there who are requesting information on behalf of larger numbers of people. You probably will never understand or never know just how broad the interest and the concern is. If you eliminated all the proxy or all those commercial players, how many individuals would then come forward in the numbers?

I think the numbers have to be in terms of number of complaints, number of requests, etc. It has to be taken that every year we report is probably going to have the same level of fuzz in it, so that on a macro basis it's probably relatively comparative. I'm not overly concerned about that, but I am concerned there are some issues that continue to be of concern to members.

The point I was going to try to make is that if we don't make changes in a minority government, it's very unlikely we will be making them in a majority government. This is the time, in my view. That's a comment. I don't want your response because it's unfair.

I appeared on the Right to Know Week panel, which you referred to in your opening remarks. First of all, I enjoyed it very much. I thought the panel that I was on just gave a wealth of information. I know you have captured an awful lot of that. I hope the members will have an opportunity to be apprised in one way or another of some of the wisdom that came out of those number of sessions. I was on only one panel of a large number of panels.

I would remind you that at the very end, the moderator of my panel said, “After you finish your remarks, I want you to give me your top two recommendations for consideration”. I'm not sure if you recall, but I was the last speaker in a panel of about seven or eight people, and everything I wanted to say had already been said. So that made it really difficult.

I basically set my speech aside and concentrated on two areas. One was what came up today about the Mexico situation and proactive disclosure. It is something we have not really given serious thought to. It is something I think should be given serious thought, because it does mean that governments would not wait for a request but would simply post on the web all those matters that are accessible under the act. The only things that would not be posted would be matters of national security or cabinet confidences.

It would change the whole situation that we are talking about. It would solve so many of the problems.

I'm asking you whether or not proactive disclosure is an approach you believe this committee may want to consider, and whether we should maybe even visit or bring witnesses from the Mexican authorities to talk to us about the process they went through, where they are, and whether or not it is applicable to us.

Is that something you think this committee may want to consider?

[Suzanne Legault]

Mr. Chairman, I think proactive disclosure is the wave of the future. I can report to this committee that my colleagues at the provincial and territorial level decided, in September of this year, to make proactive disclosure one of our priorities in terms of what we want to recommend to governments.

With regard to authorities or international examples, I would suggest that the Mexican model may not be the best one even though they do have a web-based system, because there are new pieces of legislation.

For example, I mentioned the Quebec legislation, which is new. They have a new publication scheme under which there are two key areas in addition to what exists now at the federal level, which is disclosure of requests and the responses. That would be a leap forward, I think, at the federal level. As well, I think having public institutions gather statistics that are of public interest would go a long way in a knowledge-based society.

So the system in Quebec is a good example. There have also been recent pieces of legislation in the U.K., in Scotland, in two jurisdictions where they have just implemented publication schemes that I am aware of.

[The Chair, Liberal, Paul Szabo]

Conceptually, though, this is something that will be on our agenda eventually.

My second recommendation for the panel had to do with the need for us to amend section 2 of the charter, regarding the rights. I have actually put in private member's Motion No. 445, which calls on the government to take all appropriate steps to amend the Charter of Rights to explicitly include the right of access to information that is under the custody or control of the government.

I still feel very strongly about that. I know it is very unlikely that it's going to happen very easily or very quickly, but there is a court case before the Supreme Court on this very question now regarding the whole debate about implicit right versus explicit right in the Constitution of Canada.

Can you tell us the status of that and what the substantive arguments are with regard to the issue before the Supreme Court right now?

[Suzanne Legault]

First of all, we're awaiting a decision from the Supreme Court of Canada. It's the case of the Criminal Lawyers’ Association weekly. It is in reference to a provision in the Ontario legislation. The Ontario legislation is framed such that it has a public interest override in most of its provision. Most of its exemptions are subject to that public interest override, but it has no such override for solicitor-client privilege information and, if I'm understanding correctly, law enforcement as well.

The issue is whether, as part of the analysis of this exemption, there should be an overall override, if you wish, based on paragraph 2(b) of the charter, which is the freedom of expression. I'm giving you a very cursory example; I'm not the expert in this case. Essentially, the issue to be determined would be whether or not access to information is part and parcel of paragraph 2(b) of the charter, which is freedom of expression.

[The Chair, Liberal, Paul Szabo]

Okay.

I do know that some of the arguments have been about such things as the right to vote. But the argument would go that the right to vote means you have the right to be informed, and if you have the right to be informed, you must have the right to access. This is the implicit linkage. I know we will slowly move that...but we await that decision.

I think it's extremely important, because if the Supreme Court does come down that--

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

I have a point of order, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

--it's no longer....

When the chair is speaking, it's in order.

[An hon. member]

Another new rule.

[The Chair, Liberal, Paul Szabo]

That's the chairman's discretion.

When the decision does come down, this will be very significant, because it will stop the—

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

A point of order, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

I heard you. I'll get to you at the earliest opportunity, okay? That's what we do, okay?

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

That's what you do.

[The Chair, Liberal, Paul Szabo]

I'm in the middle of a statement to the witness, okay?

The importance here is that this is not the first time it's come before the Supreme Court. There have been challenges to the right of access in the past, and in this one here, if the decision does not come down correctly, then we have a step backwards in terms of the implicit right to know and the right to access of information. It is a democratic right that we believe in now that's being challenged in the courts. So a lot of the things we have been talking about now may be moot because governments can just say they're not going to show the leadership, they're not going to respond on a timely basis, and nobody can do anything about it. You know, they can say, “Take us to court.”

It is a very dangerous situation. I want to raise that with you because I hope we'll be able to have a further dialogue. You may come back to us, maybe after the decision comes out and with some of the fallout, because I think it's important. The committee is committed to, one way or another, addressing the current situation with regard to the Access to Information Act.

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

A point of order, Mr. Chair.