Information & Ethics Committee on May 12th, 2016

[The Chair, Conservative, Blaine Calkins]

That uses up that particular time.

We now go to our next questioner in the five-minute round.

Mr. Jeneroux, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

This is a question for Mr. Levant. We heard, I think mostly from Mr. Conacher and Mr. Gogolek, about extending the act to cover crown corporations. I'm curious about your thoughts and comments on whether the act should include those.

[Ezra Levant]

I think it should. It would make sense to have some exemptions for business secrets or trade secrets. I look, for example, at the CBC. Certain aspects of their work are covered; certain are exempt. I think they have too many exemptions and I think they're too slow, but that's an example of a hybrid approach. There are certain editorial matters that are outside the scope of access to information. I think that's fair, but other things, like spending on limousines, are properly within the scope of access to information. I don't have the history or experience of my friends, but I think for public accountability—that's the business I'm in as a sceptical journalist, and that's the purpose of the act—my default answer would be yes. That's the Prime Minister's default: default towards openness.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Going back to my previous line of questioning, in terms of cabinet confidentiality documents, we have at least one very high-profile example in front of us now with the justice minister. Her husband has been accused of lobbying her department. The commissioner has come out and said that there is no problem with it; however, there is a bit of a screen there between what the actual example is and that. Perhaps you wouldn't mind commenting either on that particular example or just on the policy of cabinet confidentiality documents and what they should or should not extend to when it comes to ethical screens like that.

[Duff Conacher]

Sure.

I'm glad you raised the “almost impossible to be in a conflict of interest” act, because that is another one that has some secrecy problems. One of the problems is that the Ethics Commissioner is using these conflict-of-interest screens. They're actually illegal under the act. There is a positive duty, under section 25 of the Conflict of Interest Act, to disclose every time you remove yourself from a decision-making process. Even if you say, “Oh, we're creating this screen such that your staff person will always remove you from processes and you won't necessarily even know it, and therefore you don't have to disclose it”, you can't override the positive requirement to disclose every time you are removed. The screens have been put in place by the commissioner because, in fact, the minister does not have to remove herself from any decisions that will affect her husband's clients, because the act does not apply to 99.9% of the decisions of any minister. That's why it should be called the “almost the impossible to be in a conflict of interest” act.

The Ethics Commissioner has been doing this for years. It's an illegal act by her under the Conflict of Interest Act, overriding a positive duty to disclose every time you recuse yourself, and that practice should be stopped. The ministers are violating the act by using these screens and not disclosing every time they recuse themselves. It's also hiding the fact that they will not be recusing themselves at all from anything, and haven't in the past when these same situations have arisen.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Mr. Levant, do you have any comments on that?

[Ezra Levant]

I can't add anything to Duff's expertise.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Okay.

When looking at the “quick wins”, if you will, Mr. Gogolek, we're undertaking a consultation right here on our committee. The minister came in and added some clarification that he will listen to our committee, and he will reverse a decision if our committee says this is the wrong direction to go.

With regard to the order-making model, it was very clear in the budget that it was raised and going in that direction. I'm hopeful that you can provide some insights on what exactly we would be seeing if an order-making model were to present itself over the next few weeks and prior to us making our consultations we hadn't had a chance to weigh in on that. Could you elaborate on what we should expect in the first early days of an order-making model?

[Vincent Gogolek]

There would be a set-up period, and of course there would have to be a time for the commissioner's office to change because it changes the nature of the office to one that is actually quasi-judicial. But what would happen is that the commission, rather than saying, “Dear Ministry, we really think you should give Mr. Levant his records”, would then be able say, “Here's my order. You have 30 days to provide Mr. Levant with his records, minus pages 23 to 27, which are law enforcement”, or whatever the commissioner finds after a hearing is legitimately applied.

It would look, probably, hopefully, something like the B.C. model, rather than the U.K. model where if the minister decides or has a feeling that “I really don't think that would be good for government”, or maybe “I really don't think it would be good for my government that this information comes out, so I'm going to overrule the commissioner”, this is something that's been put into the proposals.

It was not there in the Liberal Party's platform, and I think people, during the election, would have been surprised to see that. We will give the commissioner order-making power. Put the minister and/or cabinet to have an override. I don't think it would be quite as attractive to the people of Canada, and we're hoping that it won't be attractive to this committee. We think this is the wrong road for reasons set out in our thing, and we hope that you will prevent that from happening.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

We've very much eclipsed our time there, but now we move to Mr. Bratina for five minutes, please.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

In recommendation 6.1, “The Information Commissioner recommends that institutions be required to proactively publish information that is clearly of public interest.” So that raises the question, what is in the public interest?

An excellent example is the security of the screening process for the refugees—the intake. Mr. Levant, you were saying you were shocked that you would get a decision that, in 200 and something days, you would know the results of the questionnaire. I'm thinking that the questionnaire is probably a part of the integrity of the security screening process. Why would we let the bad guys know what questions we're asking in order to properly screen people coming in? Doesn't it seem sensible to you that the answer of “in excess of 200 days” would be that once we have everybody through the process, we can share aspects of that screening, but right now, no, we're not going to tell you?

I'm arguing back to your point to try to get the sense of public interest and security, and bringing it altogether. Do you see that side of it?

[Ezra Levant]

That's a very thoughtful response, because that could be the explanation. The first two answers were, it doesn't exist, there is no questionnaire, which put a drop of skepticism in my mind when I was later told it was a national security issue. But the tens of thousands of strangers from a strange land are hearing these things. They are not signing any secret affidavit about what questions are asked of them. I think that this is one. What you suggest is a possibility, but I would suggest that a government operating with a bias towards openness would tip the other way.

My analogy of Stephen Harper prosecuting the war in Afghanistan, I think, is very fitting. During that time, access to information was a major tool used by the Liberal opposition and others to enquire about the treatment of Taliban prisoners. That, surely, could have been swallowed up by the same concern you're suggesting. We can't talk about that in a time of war. Well, we did, because things of such a grave nature must be tested.

If there's a true secret there...but I don't even understand how that could be...asking someone who's...Canada what documents to show. I don't know how that could be any more secret than the war secrets that were scrutinized in the Taliban prisoners. Yes, that's a possibility, but it doesn't explain the other 300-day exemptions that we seem to be getting from this department. I'm a deep skeptic.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

Mr. Gogolek, on a similar question, public interest, are there specific areas of public interest that there's a tension about that, that you feel may be pointing to smoking guns? What are the particular areas that you feel are being screened?

[Vincent Gogolek]

In terms of public interest, we have done quite a bit of work in terms of section 25 of the B.C. act, in combination with the Environmental Law Centre at the University of Victoria, relating to how that works. In B.C., we do have the one public interest override. There has been quite a bit of work done. We had a very extensive submission done by the University of Victoria Environmental Law Centre, which we submitted to your provincial counterparts. It is up on our website, at fipa.bc.ca. Under the month of February, you can go there, and you can also see a poll that was done about duty to document and other things—very large numbers in favour of these kinds of things.

There is quite a bit of discussion in there, and previously our commissioner has actually, by interpretation, expanded the public interest override. Yesterday, the special legislative committee examining the act called for changes to the act to codify that. We think that this is an important thing to be done at the federal level, and I believe a number of other witnesses have also called for that.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

I am just wondering whether, instead of having a commissioner, we could have someone like a chief justice of the Supreme Court, where you would have a panel weigh the aspects rather than leaving it in the hands of an individual.

I would like a quick response to that, Mr. Conacher.

[Duff Conacher]

With all the officers of Parliament, Democracy Watch has always advocated three-person commissions. I think it would be a better system. We shouldn't have czars in any of these areas. As long as you have an appeal to the court, you effectively have that, in that it goes to a judge and then to a court of appeal. At the front line, I think it is not a bad idea at all to have a three-person commission to check the watchdogs themselves.

[The Chair, Conservative, Blaine Calkins]

That was an excellent question.

We now go to our very last question. Then we will have some time left over, colleagues, so if you indicate to me that you have some more questions, I think we will have a little more time.

Mr. Blaikie, you have technically three minutes, I guess.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Maybe I will just take a moment to express, in solidarity, a little bit of frustration with the kind of haste of change that has been suggested by the government. I haven't been here many times. It is my first time, but I think what is emerging already pretty clearly is that at the level of general study, I think these issues are actually pretty well known. I think the recommendations are pretty clear. We have a great report by the Information Commissioner on how to move forward, and it is clear that there is a pretty wide-ranging set of reforms that need to take place if we are going to change the overall culture.

There has been this interim directive. The idea is that we really need to let these things settle and see what effect they have, and then we will know better whether we can move forward with more substantial reforms. I am just wondering, in the opinions of the experts, Mr. Gogolek and Mr. Conacher, what bearing do the initiatives taken in the interim directive actually have on the other things. If it turns out that just enforcing the $5 fee, and not requiring fees for research, printing, and stuff, is a bust in one way or another, how does that really have an impact on whether we are going to expand the scope of access to information, say, to crown corporations? I am just wondering what real relation the measures in the interim directive have to the other kinds of measures that we are being asked to wait on.

[Vincent Gogolek]

Hopefully, some of the useful initiatives in the directives will have the effect of actually reducing the number of requests or speeding them up, so there could be beneficial effects. Like you, I don't think there is a relationship between what is being proposed in the directives and the fact that nobody outside of the officials claiming that a document is a cabinet document ever gets to take a look at it and speak authoritatively to say, “Yes, it is” or “No, I don't think so” or “Are you saying this is a cabinet document because you put it on a trolley and ran it through the cabinet room?”

There are a number of discrete issues. I don't think the directives will affect things like order-making power or cabinet exclusion.

[Duff Conacher]

I'll use the analogy of government scientists. A journalist called several of them and talked to the unions recently. The directive was given soon after the election: you can talk to journalists. The Treasury Board policy hasn't changed. People can be disciplined, up to and including firing, for violating the Treasury Board policy. They're not going to change the culture until the rule changes, so the rule changes have to come.

We've gone back to 1994 in terms of talking about the rhetoric of changing the Access to Information Act. The problems were known in 1986. That's 30 years; these things have been well known for 30 years now, and there is no reason to wait. Because it is 2016, we need the real change now.

What I'm worried about is that in 2018 the government will be saying, as Minister Clement did in December of 2014, “Oh yes, this act needs to be changed, but it's too late to get a bill through.” There were six more months at that time, and it wasn't too late: several bills went through Parliament in the first six months of 2015.

That's what I'm worried about. There is just no reason to wait at all.

[The Chair, Conservative, Blaine Calkins]

That takes us to the end of the official rounds of questioning. We still have about 20 minutes left, colleagues. I've had an indication from Mr. Kelly that he would like to ask some more questions.

Is there anybody else at the table? Mr. Saini, I will get to you soon, and Mr. Blaikie, Mr. Lightbound, and Mr. Scarpaleggia.

Because Mr. Scarpaleggia hasn't asked yet, is it okay if we move him to the top?

I just want to be fair to all members.

Mr. Scarpaleggia.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

The reason I haven't asked a question is that it's my first time at this committee, and it's very interesting, I must say. You have a very interesting committee dealing with a very interesting topic.

I'm curious about the aspect that says that the act should be extended to all of Parliament. Could you just, by way of background, tell me what you have in mind here? Are we talking about correspondence that MPs send? Are we talking about MPs' phone message books, are we talking about emails that an MP sends? I just want to know what one has in mind here.

Mr. Gogolek?

[Vincent Gogolek]

What we'd be talking about in terms of the coverage of Parliament is that there would have to be an interplay, because of course, as a member of Parliament you have certain privileges that are recognized in law. Some situations have arisen before in which the House of Commons has raised privilege when information was about to be released, and they went to Federal Court. There would have to be a balancing.

But at the same time, the administration of Parliament, the administration of the courts, where the money is spent—things that don't affect and are not affected by privilege—should not be covered by it.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

You're talking about financial information, expense reports. Is that what you're talking about when you're talking about having access to documents from the offices of members of Parliament? Is that all we're talking about? Is everything else covered by privilege? I'm not sure.

[Vincent Gogolek]

Well, privilege is a little long... and of course you're probably more familiar with the scope. There is a discussion to be had in terms of how far privilege extends.

I can draw the analogy with legal privilege, under which some people are claiming that even releasing the total amount paid in a year in fees is a violation of privilege. Well, I don't think so. I think that's public accountability. There is a point at which that—