Thank you very much.
It's a pleasure to be with you at a distance. I hope Ottawa has recovered from its recent snowfall. In Halifax we're used to snowfalls and slush like that, so we have some sympathy for you.
I'll give you a couple of introductory comments about my organization, the Centre for Law and Democracy, or CLD. We are based in Halifax. We are an international human rights organization. We promote foundational rights for democracy, including what we call the right to information, or access to information in Canadian parlance, because it has been recognized internationally as a human right under international law.
We work globally on this issue. I think it's fair to say that we work with all of the leading intergovernmental organizations that focus on this right—the UN special rapporteur on freedom of expression, other UN bodies, the Council of Europe, the Organization for Security and Co-operation in Europe, and so on and so forth.
The position of CLD, which I don't think differs from the broad position of civil society in Canada, is that the federal access to information system is broken. Although we're a civil society organization, we measure our words fairly carefully. We don't throw around terms like “broken” very easily, but I think at this point that is a well-charted position on the act, supported by numerous studies over a very long period of time. We feel it's an appropriate term to use.
I agree with most of the criticisms that Mr. Drapeau put forward, but I have to differ from his position specifically in respect of the act. My organization has worked with another organization, Access Info Europe, to develop the right to information, or RTI, rating. It is an internationally recognized methodology for assessing the strengths or weaknesses of legal frameworks for the right to information. I would say that this methodology is globally recognized. It is, for example, frequently relied upon by such actors as the World Bank and UNESCO in their work in different countries on access to information frameworks. I was contacted just yesterday, for example, by UNESCO. They are looking into the possibility of applying the RTI rating to a draft access to information law that's being prepared in Palestine. We have frequently worked with the both the World Bank and UNESCO on using the rating for that kind of purpose.
On the rating, Canada, the Canadian federal framework, scores 79 points out of a possible total of 150 points. I think that's quite a dramatic score. The top-scoring country, surprisingly Serbia, scores 135 points, showing that the rating is not an unrealistically stringent set of measurements. It's a set of measurements that many countries go over 100 on.
Perhaps even more significant is that Canada is now in 59th place out of 102 countries whose laws we have rated, and each year Canada falls further and further down the rating as other countries reform their legislation to improve it or as new countries adopt legislation that is stronger than the Canadian legislation. I think the RTI ratings show pretty clearly that there are very serious problems with the Canadian legal framework.
The first point we would like to make is that we very much welcome the quick gains that the Honourable Scott Brison announced on March 31. We had called for all of those changes to the legislation. We feel that all of them are crucially important. At the same time, and I think as the RTI rating clearly demonstrates, that is not nearly enough. We feel that a much more profound reform of the act is absolutely necessary to bring it into line with anywhere near what most Canadians would consider a respectable position for Canada in respect of an international human right like the right to information.
We do not support the idea that a full review of the act should be put off until 2018. We feel that Canadians, across all political stripes and from all different sectors, have been calling for reform of this act for many, many years now. We feel that putting it off for another two years would be an unnecessary and essentially unacceptable delay.
We also note with concern that the quick-gain reforms that the Honourable Scott Brison announced are identical to the commitments in his mandate letter.
We would be concerned that putting the reform off until 2018 would perhaps lead to further delays and further extensions of that, so we would not see this reform happen within the life of this Parliament. We feel that would be very unfortunate.
In January 2013 we prepared a submission as part of the Office of the Information Commissioner's review of the act, and we have four main areas where we have proposed reforms.
The first is the scope or coverage of the act. This is where the proposed quick gains have the greatest impact and therefore the greatest amount of improvement. At the same time we notice that there are several areas where the scope would remain too narrow even after those quick gains. We note the blanket exclusion of the cabinet in the scope of the act; the limited nature of the schedule 1 list of public bodies that is not regularly updated as the nature of those public bodies change; and we also note that the act is restricted to citizens and residents rather than individuals, unlike the Swedish act that we heard about, and many other acts.
The second area where we identified a need for change is in respect of the exceptions in the act. The quick gains do not make any proposals for change there. We note that schedule 2 includes nearly 60 secrecy [Technical difficulty—Editor] for secrecy. We just heard from the Swedish ambassador that in that country they have one law that sets out the principles for exceptions, and that other laws are not allowed to go beyond that. We strongly support that approach. Unfortunately the schedule 2 exceptions go way beyond the principles that are established in the access to information law or are better recognized under international law.
We note as well that several exceptions are overbroad or by nature are illegitimate. Many exceptions do not include a harm test. The disclosure would be expected to be injurious to a specific interest—that kind of language. Under international law the principle is that all exceptions should be conditioned by harm. Only where release of the information would harm a protected interest should the information be withheld.
Finally, we note in terms of exceptions again that the law includes only a very limited public interest override. In 2010 the Supreme Court of Canada substantially extended that public interest test to all non-mandatory exceptions, so that public bodies are now required to consider the public interest for any non-mandatory exception, but all of the mandatory exceptions still fall outside of that and don't have a public interest test.
In terms of procedures, I'm sure that other people who have appeared before you have mentioned these. There are two key problems with the act as it presently stands, and one is the time limits. Mr. Drapeau also referred to those, whereby public bodies are given very broad discretion to extend the time limit in which they respond to access to information requests. The result is that requests are often only processed after very long delays, unlike in any other countries where there are strict and fixed timelines. We have very concrete proposals for improving that system. We feel that's one of the most important things that need to be addressed.
The other issue with respect to procedures that needs to be addressed is the issue of fees. Under the law, fees can be charged. A schedule of fees has been prepared. It is not in line with realistic cost estimates. Even the charge for photocopying is far in excess of what any Canadian would expect to pay for fees at any commercial enterprise.
Those are two areas in respect of procedures.
Finally, coming to the issue of appeals, again I would have to differ with Mr. Drapeau on the question of order-making powers for the Information Commissioner. This is an issue that my organization has studied very carefully. In many other countries and in different Canadian jurisdictions there is, as you know, a mix of practices across jurisdictions. We feel that the overwhelming evidence, from both international jurisdictions and from within Canada, is that an order-making power is a far more important and a far more effective power. We note that order-making powers would be likely to have a strong positive impact not only on the decision-making processes undertaken by the commissioner, but also on the mediation processes.
There is good evidence showing that having the order-making stick, if I can put it that way, in the background when there are mediation procedures, which are the lifeblood of dispute resolution under access to information laws, renders them much more effective. So we strongly support order-making powers for the commissioner. We agree that it's not a panacea under the act. There need to be a lot of changes, and we also agree that there needs to be a groundswell of cultural change with respect to the way the act is applied. But we feel that these important changes need to be made to the act.
I will end by saying that across Canada there has been a bit of paralysis in reform of access to information laws, often with different Canadian jurisdictions looking at other Canadian jurisdictions and saying that their own law is not much different from the other Canadian jurisdictions' and that it's working well enough. We note that Newfoundland has broken the mould in that respect. It has engaged in bold reforms of its law, fundamentally changed its law, shot far ahead of any other Canadian jurisdiction on the RTI rating. We would strongly encourage the federal government to engage in a similar process of reform with respect to the Access to Information Act.
Thank you.