Information & Ethics Committee on Oct. 18th, 2017

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

Thanks very much.

I have some more technical questions that I'd like to get through.

First, I'll follow up on proactive disclosure. I was asking the ministers, and it would be good to have a sense of the percentage of existing requests in relation to ministers' offices that the proactive disclosure would address. I think that would be useful for our consideration. If you don't have an answer now, that's okay. Hopefully, you can get it for us.

[Jennifer Dawson]

The proactive disclosure that would be applied to ministers' offices and the Prime Minister's Office is a new provision, so we would not have an existing comparison in terms of requests to ministers' offices that we could align to the proactive disclosure requirement.

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

Okay, fair enough. I think Minister Gould said that it would be a large proportion, so that was what I was building that question on. But if we don't have the numbers, we don't have the numbers.

[Jennifer Dawson]

I can add to that. What Minister Gould was speaking to was the fact that we know that people are interested in receiving this type of information. For example, the proactive publication of briefing notes is something that has been done as a best practice at the Treasury Board Secretariat without existing policy. What we found was that requesters do come back regularly to follow up with specific requests for briefing notes, so we know that it has been tested and it has been facilitating.

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

That's useful to know.

When it comes to the question of order-making powers, the Information Commissioner has expressed some concern about a situation where a department neither follows through on the commitment to release the information within 30 days, nor goes to court to appeal. In that situation, the commissioner has said, there is a difficulty with enforcing the order.

She has asked for an easy certification process, presumably something like this: after the 30-day period has expired, one can easily, just over the counter with the registrar, certify the order as an order of the court.

Perhaps you could speak to that. Is that a good idea? Is it something we should consider, and if not, why not?

[Jennifer Dawson]

Our intention, in the way that the bill is worded, is actually that we would not require that additional step, and in fact her order would have the weight of a court order. If her order was not being followed, she would be able to seek mandamus, in other words, an order to enforce the order, directly, without having to ask for a certification first. That's our intention with the bill.

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

Is there something in the legislation that we can point to, to give comfort to the commissioner when she is here before us?

[Jennifer Dawson]

As I understand it, the order-making power does have the force of a statute. It's not explicitly written within the act, but in fact it's inherent in the bill.

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

Okay. Perhaps when we have the CBA in front of us we can get into the nuts and bolts of that.

This brings me to judicial independence. I think it's proposed section 90.22 in the bill. I could have it wrong. It's in relation to the individual who expresses the concern in relation to judicial independence. It occurs to me that the one who raises the concerns ought to be perhaps the chief justice of the affected court. It shouldn't be an official who is raising the concern of judicial independence.

Would there be an objection from the department to that recommendation?

[Adair Crosby, Senior Counsel and Deputy Director, Judicial Affairs, Courts and Tribunal Policy, Public Law Sector, Department of Justice]

I can't speak to how that recommendation would be received, but I can certainly say that the bill reflects the decision to provide the commissioner for federal judicial affairs with the authority to determine that information disclosure—

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

Obviously, I can read proposed section 90.22, and that's what it says, but it makes more sense...so I would appreciate some feedback on this, as to whether there's a reason to think otherwise. It strikes me that on the question of judicial independence, rather than an official, there should be a chief justice of the affected court who is raising the concern of judicial independence. I leave that with you, and if we could get some response to that consideration, it would be appreciated.

The second thing I couldn't figure out is at proposed section 90.25. The Canadian Judicial Council is exempted. I can't figure out why, if we're exempting the Canadian Judicial Council, we wouldn't exempt courts more broadly. What's the rationale for that?

[Adair Crosby]

The rationale for excluding the Canadian Judicial Council is that it's actually not a government institution. It's an independent statutory body that fulfills non-government functions. It has a mandate that's much broader than a government institution. It would, no question, raise serious concerns about judicial independence.

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

How would it raise considerations about judicial independence if the very same provisions applying to courts aren't raising those considerations?

[Adair Crosby]

The provisions don't apply to the courts. The provisions apply to the commissioner for federal judicial affairs in respect of judicial expenses. With respect to the administrative institutions that support the courts, you're speaking of the Courts Administration Service, as well as the registrar of the Supreme Court of Canada. They are government institutions. As with the other provisions—

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

The CJC is funded by federal dollars, though.

[Adair Crosby]

Yes.

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

For the purposes of how the 37 chief justices, through the CJC, are spending money, wouldn't I as a taxpayer be just as concerned about that as I am about how the court administration is spending money? They're all federal funds.

[Adair Crosby]

I'm sure Jennifer could speak to the range of bodies that are not subject to access to information that are getting public funds. The point, though, with the CJC is that it comprises the 39 chief justices and associate chief justices who are performing functions that are often constitutionally protected by judicial independence.

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

Okay, so it's a judicial independence argument, which for some reason doesn't apply to courts as well.

A lot of the proposed changes when we issued our original recommendations were legislative changes, but there's a larger question, especially as requests keep increasing year after year, month after month, and the system is as creaky as it is. Are there any efforts under way that you can perhaps tell us about with respect to digitization, centralization, and the additional resources and training of staff that you're looking at doing?

[Jennifer Dawson]

Yes, we are thinking very much about process improvements, and we're recognizing that there is that increasing pressure year over year in terms of the number of requests and the volume of material that departments are processing. One thing we proposed in the bill is to enable institutions that are in the same portfolio to share resources, to have shared access to information and processing units, which can be really helpful. In some situations, you may have a large department that's under the same minister paired with a small department to enable the use of those resources more effectively which is going to help.

We're also looking at improving the access to information processing tools that departments have. We have software that could do with modernization. We would really like to improve, and we are targeting increasingly operating as a digital government and providing information in digital formats.

[The Chair, Conservative, Bob Zimmer]

That's time; we're well over.

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

We were on a roll.

[The Chair, Conservative, Bob Zimmer]

I tried to let you finish.

Next up for seven minutes is MP Kent.

[Peter Kent, Conservative, Thornhill, ON]

Thank you, Chair.

Time ran short in the last hour, but in response to the suggestion by Minister Brison that the Privacy Commissioner be called as a witness, I'd just like to move a motion that the Privacy Commissioner be added to our list of witnesses, along with the Information Commissioner herself.

[The Chair, Conservative, Bob Zimmer]

We'll deal with the motion on the floor right now. Would anyone like to speak to it?

Hearing no debate, we will vote on the matter.