Information & Ethics Committee on March 21st, 2011

[Hubert T. Lacroix]

Let's go back to something important you just said. I'd like to draw you to the Broadcasting Act, because that's where those words come from. You say that you have more or less ability according to what section 68.1 provides us. Those journalistic, programming, and creative activities exclusions that you see are the words in the Broadcasting Act. We are in a mixed-model funding environment. The government gives us $1.1 billion but says, along with the CRTC, that we need to go out and raise dollars by ourselves in a competitive environment. So the journalistic, programming, and creative activities exclusion takes on a life of its own, because it is the continuation of the mandate we have under the Broadcasting Act found in section 68.1.

So on questions that have to do with our journalists, or our journalistic sources, aside from the fact that some of these might actually be protected by privacy laws and our ability to disclose the compensation of certain people, the journalistic, programming, and creative activities exclusion in section 68.1 goes to the heart of our ability to continue delivering on our mandate.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I'm still confused. If I put in that request, how would it be treated?

[Hubert T. Lacroix]

If you deal with Mr. Mansbridge directly, or with the compensation package, we'd have to look at the request. It would either be something that we could not provide you because it's protected by privacy issues—and I'm sure that you'll be the first one to applaud that this kind of information is not available—or, depending on how the question is phrased, it could be a programming request.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

You, like me, and like everybody who works for the CBC, are paid in large part by the taxpayers. My salary is public. My expenses are public. You can go online and look at how much I make, how much I spend on all of these different categories. Ontario, for instance, has a sunshine law that everybody paid over $100,000 who works for the Government of Ontario is subject to. Does privacy extend only to the point where the CBC starts?

Why would a journalist's salary, paid for by the people of Canada, not be open? Why would their privacy be more important than that of a member of this committee, than that of all the people who work for the Government of Canada? Why would that be considered under section 68.1? That strikes at the heart of everything. We can't truly understand whether the CBC is being administered properly if we can't get access to the information we require. This section 68.1 can be used as a tool to protect people and make sure that the CBC can compete, but it can also be used as a tool to prevent parliamentarians from effectively seeing the full scope of the organization.

I see you are taking the privacy route. I don't accept that. People who are paid by taxpayers relinquish privacy to a great extent. I want to know: has a request like that been made, and how has it been treated?

[Maryse Bertrand]

I don't know if a specific request regarding Mr. Mansbridge's salary has been made--

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I mean any journalist, not just Mr. Mansbridge.

[Maryse Bertrand]

--or frankly regarding any other journalist, but I can tell you that we considered the specific information that you're talking about to definitely be part of our programming information.

The question of accountability to taxpayers to me is best answered by talking about the kind of information we have been asked for and that we have released--information, for example, on the salary ranges of the entirety of the organization. We have disclosed that. The fact that a particular individual's salary is not disclosed...that is certainly something I think we will jealously guard as part of our programming strategy.

In terms of accountability, by all means we provide, I think, all relevant information, but in a more generic fashion. Canadians can still make their judgment and determination based on that.

[The Chair, Liberal, Shawn Murphy]

Okay. Your time's up, Mr. Calandra.

That concludes the second round. Perhaps I'll give a couple of minutes to Madame Freeman, but I just want to clarify something again, and I'm going to follow up on Mr. Calandra's point.

I just want to ask a question of you, Mr. Lacroix. It seems to me, to summarize this thing, there are hundreds of requests out there, and they're being denied on this so-called journalistic, programming, and creative, which is legitimate. But CBC is self-adjudicating that. They're not allowing any records to be seen by the Information Commissioner.

You realize that if tomorrow or the next day some member of the public comes out with a request that's being denied on these grounds, and it's obviously really not a journalistic, programming, or creative issue, a lot of your testimony here will be discredited. You realize that, do you?

[Hubert T. Lacroix]

Mr. Chairman, section 68.1 refers to the three words and the three ranges of activities we've talked about: journalistic, programming, and creative activities. If a request is made that hits those, we will not release the information. If the person doesn't agree, there are recourses in the act allowing this person to challenge our position on this. That's why, as Maryse said in answer to Madame Bennett a few minutes ago, the court is there to make that judgment call. Everything else is information that we gladly provide to any Canadian making a request on the administration of CBC/Radio-Canada.

[The Chair, Liberal, Shawn Murphy]

So in other words, they'd have to go to court.

[Hubert T. Lacroix]

This is why section 68.1 exists. This exclusion, sir, exists for that purpose.

Actually, I'd like to remind you that this should not be a surprise, because when legislative committees were formed to study Bill C-2, for example, some people in this room were there. Very good questions were asked, and Mr. Reid, who was a predecessor to Madame Legault, actually said that if this were written in the way it is written now, he didn't think he could gain access to the documents that were under section 68.1.

So it's not as though the legislator, who chose to use the same kinds of words you find in the Broadcasting Act, did not know that this was a conclusion to which we would come and about which we would have a conversation. This is why we're in front of the court. These matters sir, also went to the Senate committee that reviewed this a couple of months later, with the same good questions and the same issues of substance.

[The Chair, Liberal, Shawn Murphy]

Okay.

Madame Freeman will have two minutes, then Mr. Albrecht will have two minutes.

Sorry, Madame Legault, do you have a comment?

[Suzanne Legault]

I just want to alert the committee that the last point made by Monsieur Lacroix is actually part of the arguments before the court. I certainly wouldn't want to comment on that specific point in terms of parliamentary debates and their evidentiary weight before the Federal Court of Appeal, because that is part of the argument.

[The Chair, Liberal, Shawn Murphy]

Okay.

Madame Freeman, you have two minutes, and then Mr. Albrecht will have two minutes.

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

I have a quick question.

What really happens when you receive a request and it is denied? Who ultimately makes the decision to deem it a refusal? Is it the ATIP director?

[Maryse Bertrand]

It is the access to information coordinator.

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

Who is that exactly?

[Maryse Bertrand]

My assistant counsel. She looks after media rights. She is my right arm.

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

She does not consult you, she makes the decision.

[Maryse Bertrand]

She makes the decision herself.

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

You do not oversee the decision.

[Maryse Bertrand]

No.

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

Her decision is final.

I have a question for you, Ms. Legault. Did other institutions challenge the application of section 68.1 or section 69? Did anyone else challenge that?

[Suzanne Legault]

The other similar provision is the one that applies to Atomic Energy of Canada Limited. Section 69 is different, in my view, but it is also part of the argument made before the court. Atomic Energy of Canada Limited gives us the documents so we can conduct our investigations.

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

Thank you.