Information & Ethics Committee on Nov. 1st, 2017

[Suzanne Legault]

There is already a provision in the act for institutions to get an extension when there are a large number of records and providing the disclosure would unreasonably interfere with the operation of the institution. That already exists in the current legislation.

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

That's extension rather than a refusal.

[Suzanne Legault]

It's an extension rather than a refusal.

You've heard testimony that some of these requests are bogging down the system, putting gum in the system—30 million pages. You have to look at the facts. We're doing evidence-based policy here.

If you look at last year, the average number of pages processed per request across the system, for all institutions, was about 200 pages. In terms of the two institutions that you've heard from, CIC and CBSA, the average number of records per request from CIC, or IRCC, was 53 pages, and for CBSA it was 75 pages.

It's true that there are a number of requests that are large, but that could be dealt with under the frivolous and vexatious and bad faith provisions.

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

Well, that maybe answers my next question.

This fishing expedition that might take years of man-hours to deal with seems to be a legitimate problem and really burdens the system. Your suggestion on dealing with it through the “frivolous and vexatious” provisions would resolve that.

With respect to proactive disclosure and oversight, I'm trying to wrap my head around this aspect.

Right now, there is certain information that I can request under the Access to Information Act that is subject to proactive disclosure, but there are longer timelines and you don't have oversight. Wouldn't I have been better off going under the current act than proactive disclosure? We can fix that perhaps by setting more aggressive timelines and giving you oversight. Is that correct?

[Suzanne Legault]

That would fix it, yes.

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

You raised concerns about publishing your orders and mediation.

Could you briefly expand on the importance of putting in writing, I guess in the act, that you would have this formal mediation authority and you would be able to publish your orders?

[Suzanne Legault]

The reason I'm recommending that there be a formal provision for mediation is that sometimes some complainants do not wish to participate in the mediation process. I think the mediation process is extremely helpful in resolving complaints in a more timely way. I think that would be helpful. It also puts focus on the mediation process with institutions as well.

The certification of orders for me, and the publication of my orders, would be helpful because if there is an order that is certified in the Federal Court, as I've explained, and the order is not followed, then it would be a contempt of court proceeding, which is faster. The publication of orders for me would be helpful because it would develop a body of decisions that could be used as precedents for institutions and give guidance. We wouldn't be reinvestigating the same issues over and over, because we would have this body of orders.

I think that would be a great benefit to all involved.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Erskine-Smith. We are at time.

The next round will be five minutes, starting off with MP Gourde.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

Ms. Legault, thank you for being here.

Like many Canadians, I was shocked to see the new version of the Access to Information Act presented in Bill C-58. If it had existed in this form in the early 2000s, the sponsorship scandal could have never been exposed. To keep information in that great darkness is an attack on Canadian democracy. Some 15 years later, this bill contains provisions that will make it even more complicated for Canadians to find out what is happening in their government.

What should we do, Ms. Legault?

[Suzanne Legault]

That is why I have made recommendations to improve Bill C-58. I think that the recommendations truly focus on preventing some of the negative impacts of Bill C-58. I really hope that the committee will take them into consideration and that the government will consider all of the committee's recommendations to improve this bill.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Could the exemptions that would enable some people to avoid the obligation to disclose information really impede access to information in the case of some files that people would want to mitigate or set aside?

[Suzanne Legault]

The provision that provides an exemption for personal information has existed and been interpreted for 30 years. After all, it is a mandatory exemption. It reflects the fact that personal information belongs to the individual and not to the government. So it is appropriate to have a mandatory exemption and notices provided to the privacy commissioner pursuant to section 8 of the Privacy Act.

What I take issue with is that Bill C-58 proposes requiring the information commissioner to consult the privacy commissioner in all cases where institutions have given notice to the privacy commissioner. I think that will make investigations conducted under the Access Information Act virtually impossible. As I explained, it will hurt not only the efficiency, but also the integrity of investigations. That is why I have a lot of difficulty with the proposals of Bill C-58.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

It would appear that commissioners—whether we are talking about you, the information commissioner, the privacy commissioner or the conflict of interest and ethics commissioner—are currently struggling to get answers about some files or individuals.

Are we really seeing an attack on all our institutions?

[Suzanne Legault]

I am here to testify on Bill C-58. I explained in my report my concerns with regard to this bill and I made recommendations. Anything beyond that is outside the scope of my testimony.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

With all those actions that, little by little, are hurting access to information, preventing individuals from disclosing information or blatantly disregarding the essence of our institutions, sooner or later, some of those institutions may fall apart if people are not careful. If those institutions are not respected by the whole machinery of government or even the lawmakers, we are headed toward anarchy.

[Suzanne Legault]

What exactly is your question?

[Voices]

Oh, oh!

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

That was a bit of a philosophic speech. That said, care should still be taken when bills are drafted.

I want to congratulate you. You were really brave to sound the alarm on Bill C-58.

I hope that our committee will be able to make the recommendations needed to amend the bill. If that does not happen, you will understand that it's because our party does not have a majority.

Thank you.

[Suzanne Legault]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Gourde.

Next up, for five minutes, is MP Picard.

[Michel Picard, Liberal, Montarville, QC]

Thank you, Mr. Chair.

Welcome, Commissioner.

What is your interpretation of judicial independence, in the simplest of terms?

[Suzanne Legault]

Judicial independence was explained very well by Pierre Bienvenu, when he appeared before the committee. Judicial independence is protected by the Constitution, and it protects not only judges' decisions, but also the whole administrative aspect.

My colleague could tell you more about the judicial aspect and judicial independence.

[Michel Picard, Liberal, Montarville, QC]

That actually brings me to another question. Is the fact that the government pays the salaries of members of the judiciary an administrative element that jeopardizes judicial independence?

[Nancy Bélanger, Deputy Commissioner, Legal Services and Public Affairs, Office of the Information Commissioner of Canada]

I'm not an expert on constitutional law or on judicial independence. However, I can tell you that some of the information is already public. For example, salaries are provided under the Judges Act. Right now, total amounts are disclosed. In addition, under the Judges Act, judges' salaries are disclosed on an individual basis. For example, the salary of a superior court judge is already known.

What Bill C-58 proposes is to publish judges' names and the cost of their participation in conferences, their travel expenses, their hospitality expenses, and so on. What you heard from that witness is that very specific and individualized information on judges can undermine the independence of the chief justice's court administration. The chief justice is in charge of assigning judges to various places. In addition, according to the witness, publishing that information can compromise judges' personal safety.

I believe that the committee must take that seriously and do the work needed to see whether constitutionality and judicial independence are really at stake under the circumstances.

[Michel Picard, Liberal, Montarville, QC]

Rest assured, ladies, that no one in this room is questioning the independence and integrity of the justice system. That said, everyone submits expense accounts. I have never put down an expense I was anticipating; they were always expenses I had already incurred. I say this with all due respect for the safety inherent to judges' work. Information about judges' expenses—whether for travel to attend a conference, for example, or for other purposes—is provided after the fact. I feel that this, in itself, somewhat undermines judges' safety. It provides accountability for expenses made using taxpayers' money.