Information & Ethics Committee on Oct. 25th, 2011

[The Chair, NDP, Jean Crowder]

Go ahead, Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I don't need Mr. Butt apologizing for me. I was elected to do my job and I do my job. If he wants to do something, he should stick to his point.

[An hon. member]

I don't think that's a point of order.

[The Chair, NDP, Jean Crowder]

Gentlemen, excuse me for one moment, please. I believe Mr. Angus was responding to testimony that was held last week. I reviewed the blues and that testimony was allowed last week, so I allowed the line of questioning based on that testimony.

Mr. Butt.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

I didn't say he didn't say it. I just made my comments, for what it's worth.

Again, Mr. Bernier and Mr. Trudel, thank you for coming.

Mr. Bernier, you said you were uncomfortable with our committee doing our work while there is a court case pending. You are aware that the reason why this committee is doing this study is because the CBC has decided they didn't like the court decision that told them they should be disclosing material and not using 68.1 as a shield for disclosing that material. You do understand that's why the committee is doing this study.

[Marc-François Bernier]

Of course, I understand that’s the committee's reason.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Do you not believe it's appropriate for a journalist of any organization they work for...? It doesn't have to be Quebecor. It could be the Toronto Star, it could be whoever. Is it not appropriate for a journalist to file an access to information request to ask for spending information about what a public broadcaster has done?

Madame Legault gave an example where one of the requests for access to information that was denied by the CBC was to find out how much they spent covering the Olympic Games. Why is that not an appropriate thing for the CBC to disclose? It has to do with their business operations. It doesn't affect journalistic integrity. They're asking for what it's costing. Especially when the CBC is getting $1 billion a year of taxpayer money to subsidize their operations, why isn't that a reasonable request?

[Marc-François Bernier]

I’m not familiar with the Olympic spending file. I don’t know what that budget covered. Certainly it covered travel, accommodation and journalistic activities. It’s not my place to interpret the legislation.

But I fully agree with you: the work of journalists includes making access to information requests on topics of public interest. I did it myself when I was a journalist. It’s good that we have this legislation.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Thank you for that. I was going to ask whether in your career you had filed them. I'm sure you have. You would expect the organization that you've requested from to provide the information in a timely and responsible manner, would you not?

[Marc-François Bernier]

Absolutely. Otherwise the journalistic value of the information may disappear fairly rapidly, in some cases. But this isn’t the case in all situations. Some topics are still relevant, but sometimes the journalistic value of the news is reduced over time, it declines.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Fair enough.

Monsieur Trudel, I believe you said in your opening statement that you believe the CRTC should be the body that determines 68.1. Do you want to expand on that? I'm not quite sure I agree with you, but I'm interested in why you would think the Information Commissioner.... She indicated when she was here that she has many experts in her office who are quite qualified in interpreting, in her view, the provisions of 68.1, but you seem to think the CRTC should be the determining body on whether 68.1 should apply. Do you want to expand on that and explain why you believe they're better suited than our very independent and capable Information Commissioner?

[Pierre Trudel]

The main reason is that the CBC is an integral part of the system, meaning the Canadian broadcasting system, within which competition was wanted between the public broadcaster—the CBC—and the private entities. The CRTC was given the mandate under the Broadcasting Act to ensure that this system functions properly.

The example of the Olympic Games is an interesting one. It’s important to know that the Canadian broadcasters, the CBC like the others, were competing for the broadcasting rights for these Olympic Games. When determining whether a broadcaster is required to disclose certain information, we need to ask whether it is appropriate to place a company that is part of the broadcasting system in a situation where it could see its competitive position jeopardized by its obligation to disclose information that the others, private companies for example, are not required to disclose. The CRTC would therefore be in a better position to determine whether, out of the public interest, it is appropriate for broadcasting companies, public or private, to disclose some of their information to the public. But the CRTC must make sure that they do not reveal information that must remain undisclosed, so that competition within the Canadian broadcasting system functions properly.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

You're of the view then that when information requests come into the CBC, the only time the Information Commissioner gets involved is when the CBC refuses to comply with one of the requests.

So if a request has been refused by the CBC, the individual then goes to the Information Commissioner and files a complaint that the information is not being disclosed. The CBC says they didn't disclose it because of 68.1, and they seem to do this quite a bit—hundreds and hundreds of times we're being told that 68.1 is being invoked. Are you of the view that this is acceptable in all of those cases?

[Pierre Trudel]

I think there is a real challenge when a judge or independent person is identified to determine the validity of the refusal of an organization like the CBC that relies on the exclusion in section 68.1.

Given how the Canadian broadcasting system is structured, with public and private entities, I’m not sure the Information Commissioner, whose mandate is to promote the best access to information and documents held by public organizations, has the overall perspective to properly examine the file and ensure that this type of disclosure does not jeopardize the conditions of competition that must prevail to ensure that the Canadian broadcasting system functions properly.

[The Chair, NDP, Jean Crowder]

Thank you very much. Your time is up. Thank you, Mr. Butt.

Mr. Andrews, for seven minutes.

[Scott Andrews, Liberal, Avalon, NL]

Thank you, Madam Chair.

I'm going to direct this comment to Mr. Bernier. It's about the follow-up on what Mr. Butt just talked about, the Olympics coverage. This is an example of how even the Conservative members don't understand about the business interests of one company versus the business interests of another, and how Quebecor is using the freedom of information requests to get at the business interests of the CBC, which it shouldn't be. If it were any other crown corporation that has business interests, that information would not be released. This is where Mr. Butt doesn't understand this.

Mr. Bernier, you said in your statement that you felt the interest of the owners and shareholders takes precedence over the public interest, and you said there is less freedom to do their work. Can you expand on that a little bit?

[Marc-François Bernier]

Operating the business that way isn’t illegal. Mr. Péladeau and the executives of Quebecor have the right to run it the way they want to. But we also have the right to be critical of how they do it.

Mr. Péladeau—and this isn’t personal, but I’m using his name because he's the face of Quebecor, he’s the boss—never hid the fact that he needed to use his media to promote his media and cultural products, meaning the promotion of Quebecor interests, to give value to the company’s shares on the market. All business managers want to do this. The problem in this case is that we are dealing with the context of a news organization where journalists also have professional obligations, a professional code of ethics, and obligations toward the public with respect to the quality and integrity of the information.

So there’s a problem. There is a discrepancy between the interests of the executives and the right of the public to quality information. In many cases, the journalists themselves have criticized this.

I'll remind you that the journalists of the Journal de Montréal filed a complaint with the Quebec Press Council because they were required to promote a show called Star Académie at the time. I think it still exists.

That’s where the company’s interest was taking precedence over the public’s right or public’s interest when it came to information.

[Scott Andrews, Liberal, Avalon, NL]

Similarly, with regard to Mr. Péladeau the other day, one of his freedom of information requests was on outdoor advertising by the CBC. Of course, they want to know how much outdoor advertising the CBC does so they can counteract. This is where we've gotten into this.

You just mentioned the media and the assignments. You said they're given assignments intended specifically to attack competing media.

Could you explain the hierarchy of Quebecor, or a media organization, when they're given an assignment? Where does that assignment come from? At what level of the organization would that be? Is it a young, crackerjack reporter trying to impress the upper management of the company?

Give us some understanding of how these assignments will be directed to the media and the hierarchy in Quebecor.

[Marc-François Bernier]

To give you an absolutely clear answer, we would need to conduct a very thorough investigation into how Quebecor operates. It remains that how media outlets make assignments generally varies. Some journalists have a lot of freedom. That’s the case for specialized journalists. The managers in the press room must deliver a media product. Every day, if not every hour since the advent of the Internet, they must produce. So, there is a hierarchy that I would describe as local, confined to the editing room. In some cases, orders may come from headquarters. But it’s difficult to document because the real firewall is often between the hierarchical levels.

You spoke earlier about advertising. The journalists must always be protected from these business aspects because, in fact, they work for the public, for the public interest. Of course, they are paid by a media outlet, but their first boss is the public’s right to information.

[Scott Andrews, Liberal, Avalon, NL]

Have you been following the court case? Are you totally familiar with the court case between the CBC and the Information Commissioner?

[Marc-François Bernier]

Not in this case because it comes more under the interpretation of an act. But I don’t have the legal expertise to get involved in this highly legal debate.

[Scott Andrews, Liberal, Avalon, NL]

Okay.

Also, you mentioned the role of parliamentarians and this particular committee studying this when it's before the courts. We saw in this committee the Conservatives trying to bring a judge before this committee.

In your professional academic opinion, what are your views on our even studying this while it's still before the courts?

[Marc-François Bernier]

I'm not going to be as specific as you in your question. Having been an expert in cases that have gone as far as the Supreme Court, I would say that generally a person waits for the ruling of the courts before seeing whether the legislation should be changed or not. Seeing that there is a parallel debate while the case is before the courts is sort of what makes the political scientist and journalism professor in me a little uncomfortable. I think that out of respect for the courts, whether we like them or not, it might be a good idea to wait, although the matter is very important. We need to see to what extent the CBC is subject to that legislation. Is it urgent today? That’s what I’m wondering.

[Scott Andrews, Liberal, Avalon, NL]

Thank you.

[The Chair, NDP, Jean Crowder]

Thank you.

Mrs. Davidson, for seven minutes.