Information & Ethics Committee on Feb. 23rd, 2016

[Raj Saini, Liberal, Kitchener Centre, ON]

In another part of your report you recommended that institutions ought to be required to proactively publish data clearly deemed to be in the public interest. Can you give some examples of that kind of information and how it should be determined that it is clearly in the public interest?

[Suzanne Legault]

That is good question. This is something I spoke about in 2009 before this committee, believe it or not, when we first started to discuss open government. What I had researched at the time was based on what was going on in other jurisdictions, such as in the U.S. and the UK and Australia, which were at the forefront of open government. They talked about high-value data sets and high-value sets of information.

Each federal institution has its own stakeholders. Everyone has stakeholders that have a specific interest in some information in that institution. My office is a good example. We're a small office. We have a limited mandate, but we kept having requests for information for the data on our complaint investigations statistics. We can only publish this data once a year in our annual report, but we produced the data on complaint investigations internally for my own benefit on a need-to-know basis. We started disclosing the data proactively on a monthly basis because we had a demand for it.

Each institution should deal with its own stakeholders and see what information is of value to stakeholders, because its not going to be the same for all government information for all government institutions. We have obligations for official languages and for accessibility when we publish something proactively. It's onerous for federal institutions. It costs money to proactively publish something. We have to choose, and we have to choose that with our stakeholders and with Canadians.

[Raj Saini, Liberal, Kitchener Centre, ON]

Do I have some time?

[The Chair, Conservative, Blaine Calkins]

You still have a minute and a half.

[Raj Saini, Liberal, Kitchener Centre, ON]

There were two things each one of you spoke about in your commentary at the beginning of this session. One was the hope that for each of your offices or each of your capacities, there would be an overview. You mentioned many times that the five-year time frame was up. The second thing that you mentioned was about budgetary constraints that you felt.

I know this is a pretty open and general question—everybody likes more money—but I just wanted to know whether you feel, in your mandate, that a lack of increase in your budget is affecting your capacity to provide the information that you feel is required by Canadians. As well, will the extra you received go toward hiring more people, having more investigative abilities, having more auditing abilities? Where do you see a budgetary increase affecting how you do your work?

[The Chair, Conservative, Blaine Calkins]

I think that's for all four. You have about 10 seconds each, if you don't mind.

[Karen Shepherd]

Well, let me just say right now, because I do talk about budgets, that as I've said in a previous version of this committee, I'm running a lean organization. I have 28 staff, and thanks to them I've been able to operate and make appropriate trade-offs in terms of how much I invest each year.

I mentioned that when I was cut, I wasn't able to invest in the registration system, which is a key operation in my office. I'm now going to be, as one of the priorities this year, investing in it, but again it's a trade-off.

At this time, I'm not asking for more funds, but if I had them I would be able to do more. For example, I have one legal counsel and one communications person, so I'm very limited as to what I can do. However, I have great support staff, who are very professional and support each other. We have backups on some of these things.

More money would allow me to invest more in the registration system. We've heard about technology from my colleagues as well today, and I'm looking at where I can do more. For example, having an app to make it easier for lobbyists to put something into their BlackBerry after a meeting that would automatically go into the registration system would, I think, be great for compliance.

That's a quick summary.

[The Chair, Conservative, Blaine Calkins]

We have to go now. What I would suggest to each of you as commissioners is that if you want, you can submit something if you don't have an opportunity to finish answering that question. The Liberals have some more time to ask that question, but right now we have to move to the Conservatives. If you wouldn't mind submitting something in writing to the committee if that doesn't come up, we'll make sure we have the answer to that question.

Mr. Kelly, we start the five-minute rounds.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thanks, Mr. Chair.

Over the past couple of weeks, the appearance of conflict of interest or connections between some ministers and staff or family has been raised in the House.

This is one example, and it is a question for Mary Dawson, please. It's in respect to questions about Agriculture Minister MacAulay's chief of staff, Mary Jean McFall. An article in iPolitics on February 3 quotes the minister as saying that the Ethics Commissioner is evaluating things and that it takes time.

How long does it usually take for your office to provide advice or opinions regarding potential conflicts of interest by senior staffers and officials?

[Mary Dawson]

Usually it doesn't take too long. The fact is that we're still in the opening stages of a new Parliament, so the staff, for example, are newcomers. They're still being appointed, so it depends on.... I'm not quite sure, but in that particular instance, the staffer was one who was fairly recently appointed.

It does not take us very long. We're partly at the mercy of the person who's involved, because they have to make themselves available, but when they make themselves available—and most of them do, in a very timely way—we sit down and assess their holdings and their activities and various things that need to be looked at. Once they have been looked at, some of the information we get is not made public and some is, because there's a distinction between what they have to report and what has to be made public.

Certainly the norm in virtually all cases is that by the time 120 days have gone by, there's something up on the website indicating what steps have been taken. Very often in cases like this, there would be conflict of interest screens and various disclosures.

If we say that we are looking at it, we're looking at it, but it's not a long period of time; it would be a matter of weeks, depending how complex the file was.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay. This article was about three weeks ago.

This then gets into the question that my colleague was raising. The mandate letters that many ministers received addressed the appearance of conflict of interest—not merely true conflict of interest, but the appearance of it. It suggests that some Canadians may view that as having two bars, one being set by the Prime Minister, and one being set in legislation.

I guess I'm still not sure which bar your office may look at. Do you strictly look at the legislative bar, or are these mandate letters that tell the minister that they must avoid the appearance of conflict of interest part of how you analyze the file?

[Mary Dawson]

I follow the wording of the act or the code when I determine what the bar is, and, as I indicated earlier, sometimes the bar in the letters and in the accountability guide is higher.

I frequently give what I call hard advice and soft advice to people. I'll say “Look, you're not contravening the act if you do whatever, but it may look like you're contravening the act, so consider whether you want to take the risk. You know, the Globe and Mail test.”

Basically, the conflict screens are meant to address these issues, and maybe I should explain a little about how the conflict of interest screens work.

We set up a mechanism whereby anything that looks like a matter that might be a conflict is received by an assistant or a deputy minister or somebody else it's going through, and it's stopped. If somehow something makes its way through, if something slips through by accident, there is the mechanism of recusal. That's not only within the department; it could be in any of their activities, because somebody's managing their work schedule. There are two levels of dealing with these kinds of issues.

However, just because somebody has an interest in something that may appear to be a conflict, if they have adequate screens to stop them from having that problem, that's what happens.

[The Chair, Conservative, Blaine Calkins]

Okay, thank you.

That's the end of that round.

We now move to Mr. Massé, please, from the Liberals, for five minutes.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

My question is for the Information Commissioner.

In your annual report, you say that 2014-2015 was the most difficult year of your mandate. I would like you to tell us about the difficulties you encountered. In addition, what progress have you seen over the past year?

[Suzanne Legault]

I feel 2014-2015 was a deplorable year in the history of access to information in Canada, simply because the previous government produced a bill which retroactively cancelled the application of the Access to Information Act. It is quite a well-known issue. We discussed this issue and the data from the long gun registry, as well as the investigation we conducted with the Royal Canadian Mounted Police.

This was in my opinion unprecedented in the history of Canadian democracy. The issue is now before the Federal Court in two cases. We obtained a court order from that court to have the information that still existed seized and stored. In fact, this was the data from the Quebec registry.

We also have proceedings ongoing before the Superior Court of Ontario on a constitutional issue, which is that the law contravenes the rule of law in Canadian democracy, and freedom of expression under section 2(b) of the charter.

Both matters are ongoing. The Federal Court case was adjourned sine die until the Superior Court hands down its decision. Proceedings at the Superior Court have been temporarily stayed at the request of the current government. We are waiting to see what the government is going to do regarding that file.

So that was the most difficult year particularly because of that file. In my opinion this represented a total negation of Canadians' rights to access information. It is a black stain in the history of access to information in Canada.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

[The Chair, Conservative, Blaine Calkins]

You still have two minutes, Mr. Massé, if you want.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

I'm fine. That covered what I was looking for.

[The Chair, Conservative, Blaine Calkins]

Is there anybody else, then?

Go ahead, Mr. Bratina.

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

Thank you, Mr. Chair.

Under the Investment Canada Act, agreements are made with foreign companies, parts of which are confidential in the sense of being proprietary business information.

We have an instance now in which so-called secret parts of that act—which I believe are really confidential parts, as opposed to secrets—are being asked for. In fact, a judge has ruled that the information could be released. The government is not moving ahead with the release of that information, based, I assume, on the notion that the judge may not have the right or that there is still the possibility of signatories to the confidential agreement challenging the release of the public information.

Are these kinds of agreements all vetted through the Privacy Commissioner or someone else in his office when there is an Investment Canada Act agreement or other federal agreements with private or confidential parts in them?

[Daniel Therrien]

Not in every case.

I think the way this would come up under the Privacy Act is if someone were to make a request for access to information about himself or herself that would involve that agreement. Then we would have to look at whether access should be given. Also, one of the provisions we would look at deals with protecting confidentiality of certain commercial practices, so this is not a clear-cut case.

There are provisions in our act as well as in the Access to Information Act that try to balance right of access with protection of commercial interests. Madame Legault may wish to add to that.

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

If I may—

[The Chair, Conservative, Blaine Calkins]

Mr. Bratina, I'll have to come back to you. Your five minutes are up.

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

Oh, I'm sorry. Thank you.

[The Chair, Conservative, Blaine Calkins]

You're on the list coming up, so keep your train of thought going.

We go to Mr. Jeneroux now, for five minutes, and then we'll go back to the Liberals.