Information & Ethics Committee on Oct. 25th, 2011

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you very much, Madam Chair.

And thanks very much, gentlemen, for appearing before us this morning. Certainly we've been hearing some different information than we've heard before at this committee, so it's good to get the opinions on both sides of this. As has been pointed out before, you understand that we are studying this because of the refusal to have the commissioner view the information.

I have just a couple of comments.

I believe, Mr. Trudel, you said the commissioner was not necessarily the best person qualified to oversee section 68.1, and then you suggested that perhaps the CRTC might be the best qualified. We've had other people presenting to this committee over the past couple of weeks who have emphatically stated that they felt the Information Commissioner was eminently qualified and certainly was well capable of making those decisions. Then, of course, we had the commissioner herself here this morning who was suggesting some possible changes to the Access to Information Act. I don't know if you were here and heard what those changes were.

I'll just briefly outline what she told us.

Exceptions to the right of access should be limited and specific. They should be discretionary and injury-based. The wording of exemptions should be clear and objective in nature. An injury-based exemption requires that the institution must establish a reasonable expectation of harm and support that expectation with specific evidence. The discretionary exemption ensures that the public interest in obtaining access to the requested information will be considered by the head of a government institution even where the information would otherwise qualify for exemption.

Then she goes on to say that instead of an exclusion, they would propose a discretionary injury-based exemption along the following lines: the head of CBC may refuse to disclose any record requested under the act that contains information that the disclosure of which could reasonably be expected to prejudice the journalistic, creative, or programming independence of the corporation.

Could both of you please comment on the suggested changes as the commissioner has spoken about them this morning? And could you also indicate whether you feel the CBC should be subject to the act at all?

[Pierre Trudel]

Actually, from the moment it was decided that the CBC is part of the broadcasting system, it became important to ask whether we were willing to force all broadcasting companies to subject themselves to the Access to Information Act. If that isn't the case, we will have to go back to the exclusion.

That’s why we chose an exclusion. It protects the freedom of the press, journalistic freedom. Forcing a media organization, each time a request is made, to prove that there is harm that could cause a document to be disclosed very seriously affects its independence and flexibility to do investigative journalism, develop programs, be active in programming rights and the advertising market. That’s why there’s an exclusion.

That’s why I think an exception, an injury-based exception, isn't an adequate way of ensuring that the public broadcaster is operating in a way that respects the constitutional freedom of expression, and that also properly protects both private broadcasters and the public broadcaster. I also have a lot of doubts about the constitutional validity of a proposal that would force the CBC to prove every single time a person requests a document that it will cause some harm. This would be the same as asking a newspaper or television station to consistently prove that its editorial freedom is being affected.

But we’re talking here about an environment to produce a creative activity, programs and news. If a broadcasting agency like the CBC is required to take action to continuously defend itself against access to information requests, I’m not at all certain that it will still have the ability to ensure its own editorial freedom, which is recognized among broadcasters.

[Marc-François Bernier]

Well, I’m not a legal expert, so I don’t have the expertise required to comment on the matter, but allow me to point out that protecting the freedom of the press and applying the principle of fairness are two very important aspects in this type of decision. I was a journalist, and I know that there are expenses involved with journalistic activities that are not problematic when it comes to disclosure, whether it's where a press team went to conduct an interview or when the journalists went there. In short, these are things that may influence the confidence of these sources of information in these journalists. If they are afraid that their name will eventually be disclosed in an access to information process because they don't fully understand the act or simply don’t understand it at all, they may be afraid to disclose certain information to journalists.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Do you feel that the CBC--

[The Chair, NDP, Jean Crowder]

You have 20 seconds.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Okay, I'll be very quick.

Do you feel that the CBC, then, should be subject to the act?

[Marc-François Bernier]

Yes, that’s my opinion, as far as I understand it. I’m not an expert, but I have always asked for more accountability, and I've been asking for more accountability ever since 2002.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you.

[The Chair, NDP, Jean Crowder]

Thank you.

We have only about five minutes left, so I'm going to propose that we split the remaining time. I'll give two minutes to Monsieur Dusseault and two minutes to Mr. Mayes.

Monsieur Dusseault.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Madam Chair.

Since I only have two minutes, I'll ask Mr. Bernier a question.

First though, I’d like to thank you for being here today.

I would like to go back to an article by Ms. Josée Pilote. I don’t know if you know her. Ms. Pilote also noted that Quebecor's crusade is both ideological and business-based, as you mentioned in your brief. In her article, Ms. Pilote raised the issue of Quebecor’s business crusade.

Since you are an ethics professor, what do you think about the way Quebecor is involved in things, in lowering its advertising prices to eliminate competition? In economic terms, we could talk about dumping. Do you think that’s ethical?

[Marc-François Bernier]

It’s a business practice that is beyond my expertise. But if certain actions may close down small independent newspapers, it compromises the diversity of information in our society. It’s troublesome to me as a journalist.

You know that the ethics of journalism also rests on material bases. Small newspapers need to have a little money to do good journalism. When they are strangled, it affects the quality of the information.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Do you share Ms. Pilote’s opinion that, what Quebecor is doing, especially in the regions, is eliminating the competition so that it will be the only supplier of information, and does that affect the quality of the information?

[Marc-François Bernier]

The concentration of media in Canada has always been a major concern, since the 1970s.

We shouldn’t always equate plurality of the media with diversity of information. It only prevents us from having an opportunity for diversity when there are many types of media in one region.

[The Chair, NDP, Jean Crowder]

Thank you. Your time is up.

We'll now have Mr. Mayes for two minutes.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you, Madam Chair.

Mr. Bernier, in 2006 our government was given a mandate to provide a greater accountability for taxpayers' dollars. We had to set up a framework of transparency and accountability for corporations and give the Auditor General the ability to follow the money.

You made the statement that there was an avalanche of ATIs regarding CBC. I would suggest that if CBC had been open and transparent right from day one, there wouldn't be that avalanche. This has been pent up for some time. People have wondered just where the money is going, the $1.1 billion that CBC receives.

One of the things that is a little disturbing in a little of your testimony here is that you said it wasn't necessarily ethical that the committee be looking into this sort of attack on CBC. I would like to bring to your attention your attack on Quebecor. You've questioned their journalistic independence. You've made statements that they didn't allow that, and yet I've said there are always influences. Even CBC probably has some sort of influence on some of the journalism that is done for CBC.

[The Chair, NDP, Jean Crowder]

Mr. Mayes, if you want the witness to respond, you have 30 seconds.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Do you think what you said today about Quebecor was ethical?

[Marc-François Bernier]

I’m here because I was invited. I did not ask to appear. I have done some research, and I’m giving you the outcome of that research, which shows that the first ones need to be concerned, meaning the Quebecor journalists themselves. They are the first witnesses of the ethical problems that they are experiencing in that company.

I made a comparison with the CBC and with Gesca to see whether there were differences. The differences are statistically considerable. This isn’t coincidental. The journalists are criticizing a number of things.

I would say one thing about the doubts about the CBC’s impartiality. I’m from Quebec and for 40 years, there have been a lot of people who also doubt the CBC's impartiality on certain matters.

[The Chair, NDP, Jean Crowder]

Thank you very much, Mr. Bernier and Mr. Trudel, for taking time out of your schedules to come before the committee.

Thank you, committee members, for your participation today.

This meeting stands adjourned until Thursday.