Information & Ethics Committee on May 19th, 2016

[Wayne Long, Liberal, Saint John—Rothesay, NB]

I was going to share my time with Mr. Bratina.

[The Chair, Conservative, Blaine Calkins]

Mr. Bratina, do you have one quick question?

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

It shouldn't take long.

You have such an important job, and I know, judging by your testimony, you take your job very seriously. I try to put myself in your position, and the stumbling block for me comes with “clearly of public interest”. I've actually surveyed public interest, and one definition is that it has to do with human rights, health, finance, and so many other things.

Do you have a clear perception in your mind, in terms of what you do, of what is clearly in the public interest?

[Suzanne Legault]

We've provided some factors to be considered in terms of public interest because of what you're saying. It's not defined, and in fact I don't recall that there is another jurisdiction where that is defined. So we decided to put some of the issues that are of public interest in the context of disclosure.

We put in open government because this has to become now a matter of consideration in considering when we should be disclosing, because our governments are saying we want to promote open government and open government includes open dialogue. If you want to have open dialogue you have to be able to share some information with citizens. That's why we put that in there.

We've put in the more standard ones, health, safety, and environmental considerations, because those are things that are already in some provisions of our legislation.

We added the human rights violations because we do not think about that very often in Canada in terms of disclosure of access to information but we have had cases, like the Maher Arar case for instance, where there were clear issues of human rights, and they should be taken into consideration in terms of when we should or should not disclose information.

I have put in before you today the issue of indigenous rights. The reason why I have put that forward for consideration is because I have recently met with land claims researchers and they have sometimes quite a lot of difficulties in accessing information. I think this is something that should be considered in terms of disclosure, particularly in light of this government's agenda. We have had cases in the past in the Federal Court in terms of disclosure of information in relation to indigenous rights.

I think that is also something that could be added to the public interest, but I don't think it should be an exhaustive list because in all of these cases you have to weigh the injury and the public interest, but as I explained before in the Lac-Mégantic setting, the public interest is a case-by-case analysis as well depending on what the circumstances related to the documents are.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Madame Commissioner.

That was the most liberal five minutes we've had so far.

To bring us home we have Mr. Blaikie for somewhere between three and 12 minutes.

Three minutes if you could, sir.

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

I just want to follow up on this question of access to information when it comes to indigenous governments. Maybe just to get some clarity, is it your position that with respect to those organizations and first nations governments essentially, or bands, they should be treated in the way that you would treat provincial governments? Or do you believe that they don't really fall under the same jurisdiction or is the claim that because they receive federal funding they ought to be treated as an entity of the federal government with respect to access?

Can you give a little more clarity on what you mean and what you think the implications for understanding the relationship between the federal government and first nations governments are?

[Suzanne Legault]

In three minutes?

Understanding the relationship between the federal government and indigenous peoples of Canada?

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

Or twelve. I think I get up to twelve minutes, so....

[Suzanne Legault]

Even I cannot do that.

First of all, there are specific provisions in the act, they're very specific with various first nations, various indigenous governments, and this is a very complex area.

We did have a case in the past in the Federal Court of Appeal involving a land claims researcher for an indigenous group who was trying to obtain information from Statistics Canada...specific exemption there, specific application of the definition of personal information, exemption for indigenous rights. This is an area that's complex.

However, it is an area where we do have access to information requests in terms of all sorts of issues related to indigenous rights and there is no real analysis in terms of how we would assess the harm in disclosure and the public interest in disclosure. I think it is an area that would definitely benefit from further study with appropriate indigenous groups.

I did decide to put it on the table because I have had these representations in the last two weeks. I think it's something of interest and that could definitely be part of a 2018 analysis because that has not been clearly and carefully studied in the past.

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

Thank you.

I will take a conservative three minutes.

[The Chair, Conservative, Blaine Calkins]

You most certainly did.

I believe there is only one member of the committee who hasn't had an opportunity to ask questions. If that member would like to ask a question now, I would open up the floor.

Mr. Erskine-Smith, go ahead.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

You mentioned exclusions—moving away from exclusions to exemptions, and cabinet, in particular, as an example of that. First, are there other exclusions you would want to get rid of? Perhaps you could speak to those exclusions as well.

[Suzanne Legault]

That is the one I am most concerned about.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

On cabinet confidences, just as comfort for this committee.... We obviously want an open government, but there are deliberations that are necessarily private. Those deliberations are also subject to injury tests. You mentioned it is a mandatory exemption. Perhaps you can explain to this committee and Canadians the difference there, and what that means.

[Suzanne Legault]

Yes. There is always a misunderstanding when we say “an exclusion” or “an exemption”. When you have an exclusion, what happens is that I cannot see the records. That is the consequence, so there is no independent oversight when the government says something is a cabinet confidence.

In a mandatory exemption, what you have is that, if it fits the definition of “cabinet confidence”, then it is exempted, so the review is limited to whether or not the documents—because we would be able to see the documents—fit within the definition. What I am suggesting is that the definition, as it exists, is too broad. It needs to be narrowed. I am recommending a mandatory exemption.

What would apply—and that is a policy decision—is whether or not the public interest override would apply in that circumstance. I think that is something for the committee to consider.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

[The Chair, Conservative, Blaine Calkins]

Colleagues, thank you very much. We had an excellent discussion today.

Commissioner, we thank you very much for your continued patience. I truly and sincerely believe that the committee is seized with this, and I have every hope that we will have you back in the not-too-distant future as we go through the legislative review process. I am very hopeful that we will get there in this particular Parliament. I will do my best, and I know that there is goodwill at this committee to do so.

We thank you very much for your time. We know that you will always make yourself available, should we need to call upon you again.

[Suzanne Legault]

Thank you.

[The Chair, Conservative, Blaine Calkins]

Colleagues, we are going to suspend and return in camera to give consideration to our analysts for the drafting of the committee's report, if that's okay.

We will suspend for a few minutes.

[Proceedings continue in camera]