Evidence of meeting #77 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A video is available from Parliament.
Conservative
The Chair Conservative Bob Zimmer
Good afternoon, everybody.
Welcome to the Standing Committee on Access to Information, Privacy and Ethics, meeting number 77. Pursuant to order of reference of Wednesday, September 27, 2017, we are considering Bill C-58, an act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.
Right now, we are at NDP-22.
Mr. Cullen.
NDP
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Okay. I just want to allow Ms. May a moment.
Have we done PV-8 already?
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Yes. Okay.
As you have seen with the premise of many of our amendments to Bill C-58, they are based on the testimony we had, the witnesses who came forward and testified, particularly the Information Commissioner, who's most familiar with this act.
One of the things she brought forward in testimony was the need for an aspect of mediation. I'll quote her testimony on November 1: “The reason why I'm recommending that there be a formal provision for mediation is because sometimes some complainants particularly do not wish to participate in the mediation process. I think that 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.”
Resolving things through mediation seems to me, especially when there's a conflict between the applicant and whatever ministry they are dealing with, a way to make real the duty to assist aspect of current access to information law. If there's a duty to assist, and there's a conflict of interpretation, then NDP-22, this amendment we've moved, new clause 13.1, would allow a formal mediation function in the course of an investigation.
That's essentially our amendment. I think it would help Canadians, and I think it would also help government in releasing information that's both helpful and appropriate.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Cullen.
In my duty as chair, under the advisement of our legislative clerk, the amendment would allow the Information Commissioner to appoint a mediator for certain purposes. As House of Commons Procedure and Practice , Second Edition, states on pages 767 and 768:
Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation.
In the opinion of the chair, the appointment of a mediator would impose a new charge on the public treasury. Therefore, I rule the amendment inadmissible.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Mr. Chair, I appreciate the advice, but through you to the clerk, as the government has heard this advice from the Information Commissioner, and it's essentially a technicality that we're relying on to be unable to amend the bill this way because it may invoke spending later on, if this is deemed a good thing for Canadians and is deemed a good thing by the Information Commissioner, and is the practice of Bill C-58 if it were to become law, the implication and the use of mediation would be at the purview of the government of the day. It doesn't have to be deemed in through act of law.
Thank you for your reference. We can move on.
Conservative
The Chair Conservative Bob Zimmer
Thank you, Mr. Cullen.
We'll move on.
(Clauses 14 and 15 agreed to)
(On clause 16)
We have LIB-5.
Mr. Erskine-Smith.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
The idea behind this amendment is there is currently an exclusion from the Information Commissioner making an order in relation to an investigation that she commences.
I've put this in more for discussion because frankly, this wasn't flagged by the Information Commissioner. I had flagged it, and I had spoken to former information and privacy commissioners at the provincial level who seem to have order-making power in relation to investigations that commenced, but given it wasn't flagged by any of our witnesses, I have made this more of a discussion point and put it out there.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's entirely appropriate.
Through you, Mr. Chair, I'm wondering, Nathaniel, if you could explain those other conversations, because I think we can learn a lot from other jurisdictions in terms of their application of sometimes very similar law. What might be an example of further order-making powers that would enable better and more clear information to be released to the public?
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Very briefly, as it's pretty narrow, the idea is that where there's a complaint made under the act as drafted, and rightfully so, the Information Commissioner can now make an order, but where she commences an investigation based on reasonable grounds and finds merit, she is precluded from making an order. Other information and privacy commissioners at the provincial level have the ability to make such an order.
As I said, this wasn't flagged here. I don't want to dwell too long on it, but that's the explanation.
Conservative
The Chair Conservative Bob Zimmer
We'll vote on LIB-5.
(Amendment negatived [See Minutes of Proceedings])
We're on NDP-24.
Mr. Cullen.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
In a sense, we heard conflicting testimony over order-making powers, or the interpretation of orders that are certifiable. I believe it was Minister Brison who suggested that all was well and that the powers were sufficient, but I'll again refer to the testimony of our hard-working Information Commissioner, Madame Legault, on November 1. I think she was answering a question by Mr. Saini, who asked about this issue.
She said that was not her interpretation of the bill as currently drafted. Essentially, if the government institution sat on the order and did not provide disclosure when ordered, she would have to take a mandamus application in the Federal Court, which is part of the Federal Court legislation. However, her concern was that mandamus applications usually take around 18 months, and that's why she was recommending that there be an added provision that the Information Commissioner be allowed to get the order certified in the Federal Court. Her general counsel advised that those contempt of court proceedings usually take four months.
In the issuing of an order and directing a department to come forward with information that's deemed to be vital and does not infringe on the privacy of Canadians, we have learned through testimony from the various groups—first nations groups, civil society, and journalists—that if information is delayed, information is denied. The simple carrying forward and adding of months and sometimes years to the process, for some issues in particular, means that the public is never given satisfaction. Essentially, the issue has now moved on. We're so many years beyond this.
The amendment that we propose in NDP-24 would follow the advice of the Information Commissioner to be explicit, so that there's no interpretive wiggle room and it's simply the ability of the commissioner to turn to the Federal Court. Again, from her counsel's observation, this would be in the four-month range of delay, which is still a delay but not a year and a half or more.
I'm thinking of some of the information examples we have been given, from residential schools and missing and murdered women to sexual harassment in the government and Ms. Doolittle's work at The Globe and Mail. That part of the effort in revealing these important issues—some of which the government has acted on, by the way, in terms of their recent legislation yesterday on the murdered and missing inquiry—is based on evidence that was gained from access to information. In many cases, it was delayed significantly because of this back and forth with the Federal Court.
All this does is clearly give the Information Commissioner the tool that the minister, frankly, said she already has, but the evidence is borne out differently in terms of this notion—not being a lawyer, I'm trying to be careful here—of mandamus applications and the delay that seems to have been created.
Conservative
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I haven't made many mandamus applications, but I have made a few.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Yes, perhaps.
I shared a similar concern, but then the Information Commissioner clarified in a recent letter—I think it was today—that the 18 months was not correct. It's a much shorter period of time. It's still longer than four months, but it didn't seem as stark a problem as when we were talking about going from four to 18 months. I think it was four to seven, or something like that.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I suppose this would then be one of those amendments where you would look at it and ask what harm might be caused by this, if the Information Commissioner's counsel now says that it's not 18 months but eight months, and we can reduce it through this. Again, this doesn't put any burden that we are aware of upon the federal bureaucracy in answering ATIP requests. This simply gives a clear path that the commissioner takes when there is some dispute about the information, which is a reliable three- to four-month delay. If this does that, which we believe it does from the counsel's interpretation, and it does no harm, then we would certainly see this as a worthwhile amendment, although I'm worried about the track record of voting so far. We'll see if worthiness is our only consideration here.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you, Mr. Chair.
I don't think you mentioned it at the beginning of looking at the NDP amendment, but since mine is PV-10, I think that if Mr. Cullen's motion is voted down, then my motion is voted down.
At this time, I'd like to say why I've put this motion forward. It's for the reasons that Nathan just proposed. The Information Commissioner asked for this section to be amended so that we could certify an order of the Information Commissioner as an order of the Federal Court. I completely agree with the points that Nathan just made. There is no harm that comes of this, and it allows us to ensure expeditious use of the Information Commissioner's decision. There are a number of caveats in the way our identical amendments have been proposed. If there is no harm coming of it, if there is no other good reason why the filing of the Federal Court would serve no useful purpose.... We have enough conditions and caveats in this amendment to do no harm but potentially do quite a lot of good.