Information & Ethics Committee on Oct. 23rd, 2017

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Di Gangi, we are getting your brief translated and under the wire. We're working with the clerks, so rest at ease that we'll all be able to read what you gave us.

I'll read you something from just a little while ago. It says:

No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.

We have also committed to set a higher bar for openness and transparency in government. It is time to shine more light on government to ensure it remains focused on the people it serves. Government and its information should be open by default.

That was from the Prime Minister's mandate letter to his minister of indigenous services.

Of all the testimony we've gone through, and some of it's historical, I would suggest, Mr. Di Gangi, yours is in a sense the most condemning of this bill. If in reconciliation—whatever that means today—and fulfilling that commitment in order to reconcile, in order to settle things, in order to come to agreement in that nation-to-nation vision the Prime Minister has talked about, the information that you seek, you say hundreds of times a year, on average...?

[Peter Di Gangi]

Yes, if you look at all of the work we do across the country.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Yes, collectively. You might be one of those vexatious people.

In terms of having that information available to those different nations across Canada, is it possible to get to any point of nation-to-nation, of reconciliation, of settling of things, if government holds information back and makes it harder and harder, as Bill C-58 seems to do, to get information out to first nations people?

[Peter Di Gangi]

I think that certainly in terms of land claims, treaty claims, and those kinds of grievances and disputes, it's difficult to resolve them unless you have the evidence.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You've described a conflict of interest: a government that maybe doesn't want to solve, or solve on certain terms, can simply hold back information, redact, delay, try to get out through the courts, cost the nation.... In my part of the world, we have certain land claims that are upwards of $30 million on the first nation side of things. I don't even know what it is on the government side, over 30 years or more.

[Peter Di Gangi]

I think sometimes it may be the design of government. Other times it may simply be officials who have a big stack of things on their desks. They don't have training. They don't have inclination. They don't care. They say, “Oh, I have a way I can get out of this and clear my desk. I'll invoke section 6.1.”

It could be either the big macro picture you're talking about, or it could be someone sitting at their desk. We are concerned about what's going on now, even without this bill. As I mentioned, we make a simple request for a file or a series of files. We give them the file number. We give them the outside dates. We know exactly what the subject matter is. We're being told there will be a 220-day extension, and that for them to respond to the request is an interference in government operations. We're getting letters that say this. It's outrageous.

This is happening now without this bill. Again, to me, if there is that commitment at the top to reconciliation, it needs to translate itself all the way down through the system to the behaviour of the officials.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Heather, you pointed out a couple of things. Making this subject real for Canadians can sometimes be tricky, because the government says you have to be very specific or you should be vexatious or all of these different things in order to get information—well, they didn't quite say that.

I'm thinking of the specific case of the murdered and missing aboriginal women. What was the experience like in just getting the number, the information, out from the government?

[Heather Scoffield]

This dates back a few years—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's right.

[Heather Scoffield]

—I think it was when we first started looking into the relationship between the disappearance in the Pickton case and we were able to get.... I can't speak to the specifics of how hard that was in particular, but I would say that generally when we're after something—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

How about the Afghan detainees?

[Heather Scoffield]

Yes. You're never going to get the full story from access to information. You're going to get pieces of the story that you can pin and stitch together and talk to a lot of people about and fill in the other blanks. There are a lot of blanks in what we get, but it adds to the story. It took years of work by our reporters to even begin to get a fuller picture through a document on that—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Under Bill C-58, those experiences would have been how...? If Bill C-58 had been law, and these provisions and the specificity were required, and the determination and going to court, and all the rest...?

[Heather Scoffield]

I don't even know if it would be possible, because of those three requirements there. We would have to know exactly what we were looking for before we found it.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You'd have to name the prisoner and the date he was transferred illegally to the Afghans.

[Heather Scoffield]

That's right. The specificity is unworkable.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

A second question I have for you is about this creep across to policy. The government says they believe in an initiative—a CPP change or a small business tax policy—and the press do their job and say, “Give us the reasons why.” A typical experience would be, “Here are our points and this is what we think is good about this idea.”

The use of access to information to get basic government policy and the cost estimates and benefits of the policy seems to me to be an encroachment into some dangerous places in terms of basic accountability.

[Heather Scoffield]

Yes. I find it to be a strange use of the act. When we get back the answers to those questions, they're pretty extensive, because there's nothing secret about it. They're just basic facts about why the government's doing something, but I think it speaks to a bigger problem of secrecy within government. There's a culture there of not wanting to explain and to instead give talking points that don't really help Canadians understand what's going on within the government.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you.

Let me get back to you, Mr. Di Gangi, for one last question. I'm thinking of the residential school nightmare. I have constituents in my riding who are still seeking records. They know that they went to a residential school. They know they were taken, but unless they can get the document, the proof that they were taken, they are not due for compensation or recognition from the government.

How would Bill C-58 help or hinder their ability in their very particular cases to be able to come to some sort of peace in their minds as to what the government will admit to?

[Peter Di Gangi]

It's an interesting question. If you think of an individual in a community who might not have a lot of experience with the bureaucracy or the legislation, they're going to start off by making a very general, vague request. Again, to me, sir, that's where it gets back to the behaviour of the officials. They should help requesters. If the request is too vague, why do you need legislation to...? Why not have an official speak to the individual and ask if they can help them make their request more precise so they can respond to it? We don't need to legislate that. It's the behaviour of officials that needs to change.

For the individual who is a survivor, say, who's looking to find that information, it would be very difficult if they didn't have legal counsel, an association of some sort, or someone who had experience to assist them.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Cullen.

The last question goes to MP Picard for seven minutes. We're going to go past the 5:15 p.m. deadline I'd already set, but that should allow us enough time.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

I thank our two witnesses for their statements.

With all due respect to the files that have been discussed and are unfortunate in some respects, I would like to obtain a more objective picture of the situation. I would like you to tell me what the bill could contribute. Also, what amendments would you recommend we make to the bill in the hope of improving things?

Ms. Scoffield, you raised a specific point as to the way in which documents are redacted. Let's set aside ill intent, which is not acceptable to begin with. Where will we find a balance? On the one hand, the person who has the information must decide if the information he is being asked to transmit could have a serious impact on national security—that is the cliche—or if its disclosure could have negative consequences on an individual or a person in the organization. Let's set aside bad intentions, because there is no excuse for that. On the other hand, the person asking for the information always seeks to obtain all of it, and he or she wants to judge what could reasonably be disclosed, and decide himself what seems dangerous or what could have a negative impact.

So one person's position is pitted against the other. What solution do you recommend to balance this, so that an objective person could, in light of the information obtained, determine what should be disclosed? Do the new powers of the commissioner seem like the solution to you?

[Heather Scoffield]

There's already a balancing act that's going on there, and there's always an understanding from the person who puts in the request that there are going to be times when the answer is going to be no. We understand perfectly well that if it's national security, of course we're not going to know that. For a government official to say that is completely expected.

The problem is that those exemptions have grown to be very bloated, and at this point we spend a lot of time fighting back on them, because we just see big things that are blacked out, and a little comment on the side that we can't have this for whatever reason, such as cabinet confidence. It's very hard to question it when it's applied with such a blanket.

The new legislation would not address that. There has to be an effort to curtail it and keep it under control, rather than having it serve as an excuse across the board. Giving the Information Commissioner more power over that situation is certainly a way to do it, but I can't speak to the technicality. She's done such a wonderful job of how that should be done, and I'll leave it to her to make the case.

[Michel Picard, Liberal, Montarville, QC]

Did you want to add something, Mr. Di Gangi?