Information & Ethics Committee on Nov. 8th, 2017

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

I'm one of two members who was here when we made those recommendations. Certainly, we did recommend an order-making model that would have a reasonableness standard. I would disagree with my colleague Ms. May; this isn't a regression over the current system. The current system enables the commissioner to take the department to court, ultimately, with the consent of the complainant. It is an effective de novo process. There's not a reasonableness review. This is a similar de novo process, but it's an onus shift. The onus is now on the department to take the Information Commissioner's decision to court. I think it is an improvement.

The testimony we heard in the course of our committee study was actually from the Canadian Bar Association and from the commissioner in Newfoundland. They suggested this was a reasonable option, especially as a first step. If it's inadequate, then adopt a reasonableness standard approach that is in other jurisdictions, including B.C. and Ontario. While I preferred the reasonableness standard, for efficiency purposes, as a first step, I recognize that this de novo process is within a range of reasonable options.

I don't view it as a regression, I view it as a step forward. Perhaps it's not as far a step as our committee had recommended, but we certainly heard testimony that this was a reasonable option. So it's certainly not where I think.... I don't think it's worth fighting, this particular issue.

[The Chair, Conservative, Bob Zimmer]

Mr. Cullen.

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

I guess the question becomes, why not? Why not fight for something that this committee has previously identified as better, that the Information Commissioner has said is better, than simply saying this might be a slight improvement to a thing that has proven to be problematic over time? It's a technique or a tool.

There was some assurance given at one point. I think it was one of the government officials who said, “Well, departments aren't likely to go to court on this.” That's no assurance at all, because they're not spending their money. This is taxpayer money going to court. If there's information, particularly of a sensitive nature, Chair, which is generally the stuff that we're talking about, which is important, of course, government will seek remedy in court as a way to make a process that could be three months or four months last three or four years. I take no assurance from any notion that no department or complainant is likely to take the commissioner to court. Of course they will, if that's a tool available.

To the question that we're not looking to sacrifice the good as we aim for the perfect, I don't think what we've offered here is some unattainable thing, so I put my question again to our Liberal colleagues. If the evidence that the previous committee, including Liberals, studying this put forward and recommended, if the Information Commissioner also put this testimony in front of us, and there's no condemning action against it, there's nothing saying if you were to do this, this would cause harm to the Canadian public.

I don't understand how my Liberal colleagues are voting. I honestly don't, because they ran on this. This is about open and accountable government. We have open and accountable recommendations in front of us, and the power to make this legislation significantly better. To not do it is to suggest that all of those were words, and the reality for Canadians seeking information from government is that their reality is going to be made much worse at the end of this process. That's unfortunate.

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

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

Very briefly, testimony from the Canadian Bar Association and the Newfoundland commissioner that this is a positive step forward is, I think, correct. This isn't a regression. We've put a suggestion and recommendation to the government in the course of our committee report. The government considered it, and also reviewed the testimony of the Canadian Bar Association and the Newfoundland commissioner, and frankly the Privacy Commissioner as well.

The Privacy Commissioner originally came to us and said a hybrid model is the best model, and he wasn't asking for.... Reasonable voices were pushing in this direction. One can reasonably disagree, but we are in a range of reasonable options here. Once I've put a recommendation to the government, and the government has considered it and opted for another reasonable option, I don't think playing ping-pong makes sense at this point. That's my view.

The government was certainly aware of the recommendations, and aware of the testimony when it was making this decision.

[The Chair, Conservative, Bob Zimmer]

Mr. Cullen.

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

I'm unaware of any testimony that came from the bar or anybody else who said this was a bad idea. I guess that's the point. Government may deem this unfavourable. It may dislike it. It may cause other concerns, but those are not my concerns. Unless somebody comes to the committee and says that this order-making power, this ability to give the commissioner this new power to get information from government is a bad thing, we should base our testimony on the best that we have available.

Sure, some witnesses said maybe one step down, maybe a hybrid is better, but this was told to us, and this is what this committee previously recommended. There has been no significant evidence—again, it's an evidence-based government I'm supposed to be looking at—that said this would be harmful.

Until I hear that, then I don't know how in good conscience the committee can recommend something that we have been told is good, have been offered a slightly watered-down version, so why not go for the one that's the best offer? “We can always improve”, I think the Prime Minister said. Well, here's an opportunity. Let's take him at his word.

[The Chair, Conservative, Bob Zimmer]

Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

Very briefly, if this was the only advice or recommendation of the committee, or the commissioner, that's been ignored by the government, we'd be in quite a different place.

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

There's a pattern we're concerned with.

[The Chair, Conservative, Bob Zimmer]

If there's no further debate, I'll call the vote.

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

I'd like a recorded vote, please.

(Amendment negatived: nays 6; yeas 3 [See Minutes of Proceedings])

[The Chair, Conservative, Bob Zimmer]

Amendments NDP-27 and PV-12 are defeated.

We're on amendment NDP-28. This vote will also apply to consequential amendment NDP-31.

Mr. Cullen.

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

As I said previously, Chair, the three amendments, NDP-27, NDP-28, and NDP-29, hang together. You can sense my consternation.

It's not my first rodeo either. With no offence to the members of the previous government, this is Groundhog Day all over again, where the committee goes through the process of inviting witnesses; we hear their testimony; we make recommendations based on their testimony, and in lockstep, the government just votes them all down one by one.

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

It's not always in lockstep.

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

It's not entirely. It's with the occasional caveats, if I can put it that way.

I guess at this point I would say to my colleagues, with the caveat that was just mentioned, that some rationale as to why the government members are voting against these things would be really helpful for my understanding of where the government is actually headed on access to information, because this was a central part of the conversation leading to their election. If they're going to vote against these things, as the government does in lockstep nearly all the time, perhaps they could explain why. Perhaps they could indulge me and indulge Canadians who are wondering what happened to their promise and principles.

We can go through the process on both, Chair, but the notion of these things, again, is based on the Information Commissioner's testimony. It's based on the ethics committee's report.

I'll not apologize to my Liberal colleagues if this seems repetitious, but if we're not going to base our recommendations on evidence, then what are we basing them on? Instructions from the PMO don't count. What we should be basing our efforts on here is what we heard at the table; otherwise this entire thing was a bad-faith process and a sham with some other intention in place.

I'll move my amendment with support, and if someone from the government benches wants to tell me why it's such a terrible idea, I'd love to hear it.

[The Chair, Conservative, Bob Zimmer]

It looks as though Mr. Erskine-Smith is ready to answer your question.

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

You mentioned evidence, but on this point in particular, we heard evidence from the Information Commissioner and evidence from the Privacy Commissioner, and it was different evidence. They were of directly contrary views on the point in relation to this particular amendment that you're moving.

You can disagree with the Privacy Commissioner and the government can disagree with the Information Commissioner on this point, but to suggest that there is an absence of evidence.... This is just a disagreement between two commissioners.

[The Chair, Conservative, Bob Zimmer]

Mr. Cullen.

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

This is a good point, because during the Information Commissioner's testimony, in her recommendations, we attempted, and I believe some Liberal colleagues did as well, to get her to give us her experience, the points at which access to information requests were frustrated, and how she thought her recommendations would resolve that. We had no similar experience in testimony from the Privacy Commissioner. An opinion was offered, which was, “I like this other process”, but we didn't have any ground truthing of the experience.

If I have two commissioners—and this sometimes happens, because there's a natural tension that we experience between the Access to Information Commissioner, who wants as much information as is proper out there in the public, and the Privacy Commissioner, who's generally charged with keeping things private. That's a normal and natural tension. But one watchdog came forward and said how this would improve the experience of gaining access to information, holding government to account, and having evidence-based decision-making. I take that, actually, to be of greater value than the value of somebody coming in with anecdote and opinion.

As much as I respect the Privacy Commissioner and value his work, I asked for real-world experience. I got it from one commissioner but not from the other, so I'm going to side with the one who was able to ground truth anything that came before us. It's with that deferential respect that we chose one over the other, and I think that's commonsensical. Where I come from, that just makes sense, but maybe other people have different life experiences.

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

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

I have nothing.

[The Chair, Conservative, Bob Zimmer]

Okay, I'll call the vote on amendment NDP-28, unless there's any further debate.

(Amendment negatived [See Minutes of Proceedings])

(Clause 19 agreed to)

(Clause 20 agreed to)

(On clause 21)

We'll move to amendment NDP-29. This amendment is identical to amendment PV-13. Amendment PV-13 cannot be moved after a vote on amendment NDP-29, and so I'm assuming Ms. May would like to speak as well. I'll give the floor first of all to the NDP.

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

Thank you, Chair.

Of course, because the three amendments, improvements to the bill, hang together, work together, I realize I'm not going to necessarily have the satisfaction of understanding why colleagues are voting against it, with a small caveat. The intention remains to give the Information Commissioner the power that she needs, in this case to get the information we need as policy-makers to make decisions.

I would again refer my colleagues to some of the legislation recently introduced around violence against women, which was entirely achieved under access to information, which under Bill C-58 could have been deemed as frivolous requests from Ms. Doolittle at The Globe and Mail. The reason that the national inquiry into murdered and missing aboriginal women actually has a figure as to how many murdered and missing women have disappeared in this country was also done only through access to information. This bill would also threaten the release of that information. There's also the transfer of Afghan detainees. These are things that matter.

I know that this is not a piece of legislation that we have natural and many constituencies to, yet all constituencies are affected by the ability to get information from government. That's the only way you can hold government to account. Otherwise, it is anecdote and conjecture.

I won't re-emphasize the point about the court's order-making powers. That was established in my previous arguments.

I will turn it over to Ms. May.

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

Thank you.

The amendment is identical, because, like Mr. Cullen, I'm very persuaded by the evidence of failing to strike the right balance for transparency and the recommendations of the Information Commissioner. These do hang together. They are found in her recommendations 18, 19, and 20.

This amendment speaks to the suggestion she made in recommendation 18. When we look at the actual precision of underscoring that for greater certainty, this application is de novo, is a new proceeding; that is, it goes to the heart of where she finds the problem in moving from the model we have now to a new model, which she has labelled—the result of what's being proposed in Bill C-58—as a regression.

In an effort to try to improve the legislation as.... I'm so impressed with the work that the Information Commissioner did. On so many points, as Mr. Kent has mentioned, she found that this bill, which was supposed to be improving our access to information in Canada, is actually going in the opposite direction.

I can see which way this is going to go, but I appreciate the chance to speak to it, Mr. Chair.

I would urge that the committee support deleting the clarity that insists this is de novo review.