Information & Ethics Committee on Oct. 25th, 2011

[Suzanne Legault]

I suggested some changes today. In reality, terms such as “journalism”, “creation” and “programming” originate in the Broadcasting Act. It is probably a good idea to keep those terms. My suggestion is to really change the system, that is, to go from an exclusion to an exemption. That would still ensure the necessary protection, but it would really make it possible to conduct a review, an analysis in terms of injury and public interest. Under the circumstances, that seems more appropriate to me.

In addition, even the Supreme Court conducted an analysis regarding public interest in the case of disclosure of journalistic sources. That is not unrelated to the matter of journalistic sources. It is part of some decisions of the Supreme Court of Canada.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Just one more question.

When the CBC receives a request, do they know where the request comes from? Will they know that a company is requesting that information or a person is requesting that information? Do they know the source?

[Suzanne Legault]

The person has to identify themselves to the extent that they qualify as a requester under the legislation. So they need to establish that they are actually a resident of Canada. Aside from that, they need to have somewhere where the information can be sent to them. Some requesters, as I said before, deliberately do not identify themselves, or use a proxy or somebody else to make a request on their behalf. That's quite normal.

[The Chair, NDP, Jean Crowder]

Your time is up, Ms. Brosseau.

The final question will go to Mr. Dreeshen, for five minutes.

[Earl Dreeshen, Conservative, Red Deer, AB]

Thank you very much, Madam Chair.

It's good to see you again, Madame Legault.

I want to go through just a couple of things. They talked about the wording of the actual requests. I'm wondering if you have any examples, if they've given you any examples, of the type of wording that would mean they would not further investigate some of the requests.

[Suzanne Legault]

I guess the easiest thing to do would be to look at the requests that were the subject of the court case. I think there are 16 of them.

Do I have them here with me? Yes, I have some of them here. Some of them are in French and some of them are in English.

One of the requests where 68.1 was applied and that is subject to the court case—“statutory fees paid by CBC for the submission of ATI requests. Provide a copy of records indicating the amount of fees paid pursuant to the Federal Access to Information Statute during fiscal year 2007–2008.” Section 68.1 was applied to that.

There is a list—“Audits of the Olympics coverage by CBC and resulting expenditures by Deloitte & Touche. Provide copy of the audits of last three Olympics performed by Deloitte & Touche or equivalent auditing organization.”

[Earl Dreeshen, Conservative, Red Deer, AB]

So in these cases....

[Suzanne Legault]

There are 16 of those. They are in the public domain because they're the subject of the court case.

[Earl Dreeshen, Conservative, Red Deer, AB]

So in those cases, then, there was no information given to you. Is that correct?

[Suzanne Legault]

In those cases there was a complaint and section 68.1 was applied. There was a complaint to my office. We sought to obtain the records to verify whether section 68.1 applied in those cases, and then the CBC took us to court on judicial review, stating that we could not order production of those records.

[Earl Dreeshen, Conservative, Red Deer, AB]

So the situations where you do get information back—for example, we looked at I think 16 pages where everything was crossed out, except for 2007 F-150; that's a different type of scenario that is given there. Can you explain the arguments that exist there?

[Suzanne Legault]

When we review cases, we get all the documents unredacted and we get the redacted copy, so we verify with the actual text where redactions have been applied and what exemptions have been applied. We get to see all of the information, and then we say, “Okay, you've applied, say, personal information here”, section 19, so we will say, “Well, why do you say this is personal information?” Perhaps this person is a public servant and this information is not personal information. So we say to the institution, “You have to justify it to us.” The onus is on them to justify to us why they would apply this exemption, and then we make a determination. We agree or not with them, and then we'll say, “We disagree with you on this one”, and most of the time they'll agree with us, because Ms. McCarthy is very convincing.

[Earl Dreeshen, Conservative, Red Deer, AB]

That's good.

[Suzanne Legault]

Sometimes they don't, and ultimately we formalize the process. We make a last recommendation to the head of the institution. Usually in departments it goes to the minister, and in the case of CBC it would go to the president of the institution. They make a final determination, and then if we disagree we go to court.

[Earl Dreeshen, Conservative, Red Deer, AB]

In your remarks you also talked about injury-based issues. Could you expand upon that somewhat, please?

[Suzanne Legault]

Perhaps Ms. McCarthy can explain what an injury-based exemption is and how it works. They exist in the act.

Maybe you can walk him through injury-based exemptions.

[Emily McCarthy, General Counsel and Acting Assistant Information Commisioner, Office of the Information Commissioner of Canada]

Essentially, an injury-based exemption would require the institution to provide specific evidence of the reasonable eventuality of an injury caused by the release of that particular information, as opposed to a mandatory exemption, where it would be sufficient to qualify the information, such as personal information. It would be sufficient to qualify the information as personal information to exempt it from the application of the act.

[The Chair, NDP, Jean Crowder]

Mr. Dreeshen, I'm actually going to cut you off, because the allotted time for this particular section was until 9:45 a.m. and we've exceeded that.

Ms. Legault, I'll allow you a brief closing comment.

[Suzanne Legault]

For instance, national security matters are injury-based exemptions. This is not something that's foreign to the act, nor does it lead to massive or inappropriate disclosure of information. These types of exemptions actually work quite well, and they allow for proper analysis, proper protection, and proper disclosure.

With this, thank you very much, Madam Chair and committee members. It's always a pleasure to be here.

[The Chair, NDP, Jean Crowder]

Thank you very much, Ms. Legault, for coming before the committee and for getting here despite the crush.

Thank you, Ms. McCarthy.

We'll suspend for two minutes.

[The Chair, NDP, Jean Crowder]

We'll start the second hour with our two guests for 10 minutes each. I will hold you strictly to the times, since we have less than an hour left.

We're going to start with Monsieur Bernier for 10 minutes.

[Marc-François Bernier, Professor, Research Chair in communication of the Canadian Francophonie, specializing in journalism ethics (CREJ), University of Ottawa, As an Individual]

Thank you. Good morning, everyone.

Good morning. Thank you for having me here today. As the francophone research chair in journalism ethics, I'm sure you understand that I will make my presentation and answer your questions in French.

I will make a few opening remarks. I won't read my whole brief now. I will summarize it for you.

As I stated in my brief, I'm not here as a supporter or an opponent of the CBC. I am here as a researcher who has been conducting empirical research for many years, as an observer of the media for 30 years and as a former journalist with 20 years of experience, 14 of them at the Journal de Québec with Quebecor Media.

I have published scientific articles and books, publications that were rather critical of the CBC/Radio-Canada.That was especially the case in my study on the decisions made by the CBC's ombudsman. In addition, on a few occasions, I was an expert witness in cases that went all the way to the Supreme Court, where I opposed some of the CBC's claims.

So, I did not come before the committee to defend the CBC. I have no relationship as a consultant or a researcher with that corporation. Nevertheless, I think that there are important things to be said.

I also want to say that, when it comes to my work, my expertise is limited to journalistic activities. It has nothing to do with the cultural track record of Quebecor Media, which is an important player whose participation in Quebec culture is very positive. My presentation is mostly focused on the journalistic component.

Basically, I want to provide you with some context in order to explain the reason behind today's committee meeting.

For a few years, Quebecor Media has been on what I call a crusade against the CBC. It's a crusade I see as both business-based and ideological. This is the backdrop against which we must analyze the court action involving the CBC and the Information Commissioner.

In my opinion, Quebecor's strategy towards the CBC is primarily intended to serve private and corporate interests—which, by the way, are legitimate. The strategy has very little to do with the public interest.

I believe that goal includes a media campaign—I was going to talk about a media abuse campaign, as others have—to mobilize a certain opinion and, indirectly, parliamentarians like yourselves. I think that one of the goals is to weaken the CBC, whose television service represents significant competition, especially in the Quebec market. Therefore, Quebecor is trying to increase its income and its profits, which are already very significant, given the high level of media concentration and convergence that prevails in Canada. That level is one of the highest in the western world. That is the backdrop against which the issue should be looked at.

Quebecor's strategy is twofold. One of the two approaches interests me much more than the other: the journalistic approach. I think that we're dealing with a kind of a distortion of the journalistic purpose of Quebecor's reporters and editorial writers. The other approach is the high number of access to information requests, and that's probably what the committee is most interested in. I think that journalistic strategy raises very important questions in terms of ethics, professional conduct and journalistic integrity.

One of Quebecor's strategies for achieving its goal was to involve several journalists, or to indoctrinate them—I am using more colourful language. In some cases, that indoctrination has not affected just the CBC; we have seen it in other cases, as well. I have personally heard journalists' accounts confirming that. Those who have been paying a bit of attention will recall that, a year ago, some journalists publicly stated that they had been forced or prompted to produce very negative articles and reports on competitors. I won't go into detail, but emails were exchanged about that.

Over the last few months, Quebecor Media's journalists have asked me to comment, as an expert, on situations involving the CBC. As my comments were clearly not what Quebecor had anticipated, they were never published. I agree that this could be interpreted as editorial freedom, but it does add to the overall context.

This evidence could be deemed anecdotal. However, in 2007, I conducted a survey of a large group of Quebec journalists. That survey indicated that the journalists who felt most ill at ease, those who disliked self-censorship and a lack of freedom most, were Quebecor's journalists. We compared this group of journalists with that of the Power Corporation or Gesca, in Quebec, and that of the CBC. Quebecor's journalists suffered from what I consider to be a form of professional distress. Many of the journalists themselves felt that their work was often or very often meant to serve the company's interests rather than the public's.

I feel that this is the general backdrop against which you should consider the court case you are especially interested in.

That distortion of the journalistic purpose is especially based on the Access to Information Act. Hundreds of access to information requests are nothing to discredit. In a newspaper analysis in 2002, I recall publicly asking for the CBC to have a greater accountability obligation.

The issue involving the CBC/Radio-Canada's accountability is nothing new. However, it has taken a different turn. We must define how that accountability fits in. That's where the lawsuit the commissioner talked about earlier stems from.

As a journalism professor, a political scientist and a former reporter—even as a Canadian—I am a bit worried by the fact that a parliamentary committee is discussing ongoing court cases. I am always worried by this type of threat to judicial independence. I feel a bit like my colleague Sébastien Grammond, Dean of Civil Law at the University of Ottawa, who perceived it as an unprecedented attack on the judiciary and on judicial independence.

So, I think that we have to be careful about that, while, of course, understanding the context these matters fit into.

I also believe that the CBC's accountability obligation should be increased. I think that everyone wants that. It now remains to be seen how much that accountability may be increased.

Notwithstanding the lawsuit on the $500 million mentioned last week, there are accountability organizations for journalism, and that applies to everyone. However, I have noticed over the last two years that Quebecor Media has withdrawn from journalistic accountability organizations, such as the Quebec and Ontario press councils. In some cases, Quebecor has even gone so far as to formally notify or threaten the members of the Quebec Press Council that Quebecor will take some sort of legal action against them if their decisions could negatively affect or harm Quebecor.

I feel that we must look at that issue within the broad context I presented this morning. Of course, I am not a lawyer, and I don't claim to be one, but I believe that there is another important component here. In fact, your committee's name also involves ethics, and I think that you should worry about that component as well.

Ethics is a matter of moral judgment, but it also involves values like dignity, fairness and integrity. In a way, no one should be above those values. I think that those values are scorned by men and women who make decisions in private companies and in large public administrations alike.

That's why I am a little bit concerned by our public discussion of these matters while legal procedures are ongoing.

[The Chair, NDP, Jean Crowder]

You have 30 seconds to wrap up, please.

[Marc-François Bernier]

I am done, Madam Chair.

[The Chair, NDP, Jean Crowder]

Thank you very much.

You have the floor, Mr. Trudel. Go ahead.