Information & Ethics Committee on Nov. 8th, 2017

[The Chair, Conservative, Bob Zimmer]

Just to clarify what Ms. May is saying, PV-10 cannot be moved after a vote on NDP-24. There is also overlap with LIB-6. LIB-6 cannot be moved if NDP-24 is adopted, if that makes sense to anybody. I hope it does.

Ms. May has already spoken. Would anybody else like to speak to this?

We'll call the vote on NDP-24.

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

Can we have a recorded vote, Chair?

[The Chair, Conservative, Bob Zimmer]

Yes.

There is one thing to note. I'd like a clear show of hands. If you are supportive, raise your hand. If you are against, please, when the vote is called, accordingly raise your hand so we can make a better record of what your voting record is.

(Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])

[The Chair, Conservative, Bob Zimmer]

Therefore, we'll move past PV-10 and LIB-6.

[Olivier Champagne, Legislative Clerk, House of Commons]

No, LIB-6 we'll do.

[The Chair, Conservative, Bob Zimmer]

I stand corrected. We are on LIB-6.

Mr. Erskine-Smith, go ahead.

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

I'm not going to waste the time of this committee. We just had the discussion. Let's move on.

[The Chair, Conservative, Bob Zimmer]

Is there any further discussion?

(Amendment negatived [See Minutes of Proceedings])

Since PV-11 and NDP-25 have been dealt with previously, shall clause 16 carry?

(Clause 16 agreed to)

(On clause 17)

Next is LIB-7.

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

The amendment is that Bill C-588, in clause 17, be amended by adding after line 24 on page 10 the following:

(3.1) The Information Commissioner may publish the report referred to in subsection (2). (3.2) However, the Information Commissioner is not to publish the report until the expiry of the periods to apply to the Court for a review of a matter that are referred to in section 41.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Baylis.

Just for clarity, this vote will also apply to the consequential amendment LIB-8.

Mr. Cullen.

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

I wonder if Mr. Baylis or others could give us an interpretation of that. I heard him read in the clause. The rationale is what I'm looking for in terms of understanding this prior to our vote.

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

Regarding the rationale, you mentioned mediation previously, and the Information Commissioner has also indicated the importance of an explicit ability grounded in the legislation to publish her orders, and it's incredibly important.

We have talked about “frivolous” and “vexatious” and about some of the new language in the act. It's all the more important that there be a body of precedents we're going to see built up publicly over time. We're not going to see the decisions appealed to court all of the time, so the body of jurisprudence built up by the Information Commissioner is all the more important.

[The Chair, Conservative, Bob Zimmer]

Mr. Cullen.

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

Thank you for that. The one condition you have is only after the court review expires, so there's a review period. Forgive me again for not being familiar with how the court system works at this point, but is there anything in particular about that in the amendment?

[The Chair, Conservative, Bob Zimmer]

What's you answer, Mr. Erskine-Smith?

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

You're requiring that it be a 30-day waiting period, I think, to ensure that the department isn't appealing. In most cases we've heard, even under the current system, rarely do these things go to court, so I think you're going to find that the Information Commissioner, in most cases, is the one who is publishing the order and making the determinations and findings. However, in a rare case, it's not going to be published right away, and a court will make the law.

[The Chair, Conservative, Bob Zimmer]

Is there any further debate?

We will vote on LIB-7.

(Amendment agreed to [See Minutes of Proceedings])

We're on NDP-26.

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

Essentially, this is a recommendation that came from the ethics committee last time as well as from the Information Commissioner, so it would be weird for us to say no to both ourselves and the Information Commissioner all in one shot.

This is about the publishing of findings as well. It is similar to what Mr. Erskine-Smith and Mr. Baylis just moved with respect to building up a certain amount of jurisprudence. This is, I think, not only building it up for its own sake and making it public, but is also allowing departments to see what kinds of rulings came out that would then guide their own actions as to where the boundaries may or may not be, as opposed to having to essentially litigate these things over and over again.

I wouldn't say this is an enhancement, and it's not that LIB-7 that we just dealt with is not enough, but this certainly is an extension of that by amending clause 17.

(Amendment negatived [See Minutes of Proceedings])

(Clause 17 as amended agreed to)

(Clause 18 agreed to)

(On clause 19)

[The Chair, Conservative, Bob Zimmer]

On NDP-27, I'm going to read the note before we get any further along. “Identical to PV-12. PV-12 cannot be moved after a vote on NDP-27.”

Mr. Cullen.

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

This goes back to that interpretation piece, where we had some distance between what the Treasury Board president and the Information Commissioner were saying was the reality. NDP-27, NDP-28 and NDP-29 hang together because it allows for the oversight model that was recommended by the Information Commissioner and the ethics committee, who had studied this before.

The current government has claimed itself to be a government that will make policy based on evidence. This is the evidence before us in terms of allowing proper oversight when things essentially escalate. Let me quote one more time from the commissioner's special report to this committee:

The Commissioner recommended adopting an order-making model where the Commissioner can issue an order disposing of the issues raised, with orders subject to judicial review by the Federal Court.

The minister, I think, attempted to say that this is exactly what Bill C-58 does. But in fact it doesn't do that. If the ethics committee prior to us recommended this order-making power, and made the recommendation very clear, if the Information Commissioner also recommended this as the power she needs to get information to Canadians, and if evidence is supposed to be what is guiding us as a committee and this government, then we strongly feel that NDP-27, NDP-28, and NDP-29, allowing for that to exist in the real world, is important. If it's not, I think we're sending forward a bill that at this point is becoming fatally flawed. The commissioner came before us and told us she doesn't have the proper powers to do her job sufficiently right now. The previous committee studying this made this explicit recommendation. So I just don't see how this committee can say that we somehow know better, because we don't.

I think these things hang together properly. They are based almost entirely on the experience of our Information Commissioner and the prior experience of the ethics committee in studying this legislation.

[The Chair, Conservative, Bob Zimmer]

Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

I can only say ditto. I mean, the logic is powerful.

[The Chair, Conservative, Bob Zimmer]

Elizabeth May, and then Mr. Erskine-Smith.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thanks again, Mr. Chair. As you said, when Mr. Cullen's motion is disposed of, then I won't be able to speak to this one.

I will speak, very briefly, to the difference between judicial review of the commissioner's order and what Bill C-58 presents, and why Bill C-58's dealing with judicial review, having a review not of the commissioner's order but of a government decision, is a regressive step, in the words of the Information Commissioner.

As someone who used to practise law, the difference is really clear to me. Judicial review of an order means the record that was there when the commissioner made her decision is the record that will be examined in the review. What's being proposed here is that the court will look at a situation de novo—clean slate, no record. It creates no incentive whatsoever for an institution, if they want to hide information and delay release, to move forward. In fact, with a de novo hearing, they can stall. They can provide new information and new arguments.

In other words, it's a significant regression over where we are now. The point of this bill, I thought, was to improve the situation for access to information. I do hope that the commissioner's recommendations around the orders being reviewed will be given serious consideration by the government.

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.