Information & Ethics Committee on Nov. 29th, 2017

[The Chair, Conservative, Bob Zimmer]

Good afternoon. I call the meeting of the Standing Committee on Access to Information, Privacy and Ethics to order. It's meeting 80 on Wednesday, November 29. Pursuant to Standing Order 81(5), we are examining supplementary estimates (B) 2017-18, vote 1b under the Office of the Commissioner of Lobbying and vote 1b under the Offices of the Information and Privacy Commissioners of Canada, referred to the committee on Thursday, October 26, 2017.

Our apologies for the other day for being delayed in the House after many votes, and for making you have to come back, but here we are.

Mr. Cullen.

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

I have further apologies to Madam Michaud. I just wondered if it was okay to move my motion now. We were going to move it last meeting, and the votes conflicted, so I'd like to see if we can move it now. It's without the expectation of spending a great deal of time on explanation.

[The Chair, Conservative, Bob Zimmer]

Yes, the floor is yours.

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

For the committee's recollection, this is a motion I put forward a little while ago. I'll read the motion, and then we can have a quick talk about it. It says:

That, notwithstanding the motion adopted by the Committee on Monday, October 30, 2017, regarding the Conflict of Interest Act study, the Conflict of Interest and Ethics Commissioner be invited to appear before the end of her tenure set for January 8, 2018.

We've checked with the commissioner, and I believe she is available when we have meetings on December 11 and December 13. The committee has no committee business during those days, so that would work.

The reason we moved this forward is initially when I stood down.... I think I stood down on the motion. I don't think we ever got to vote on it because the idea was that.... I remember having the exchange with Mr. Erskine-Smith that we would just simply invite her through estimates, not realizing that she didn't have any estimates. Only the commissioners of Information and Lobbying had estimates; the Ethics Commissioner did not. We can't call a commissioner forward if they haven't asked for more money during the estimates process.

That is compounded by the fact that her term is up on January 8. She's been extended twice already, and as the Ethics Commissioner has said, she has no desire or intention to be extended a third time. That would be a 24-month extension, which stops being an extension. That's just a new hire.

I perceive this as an exit interview, because in order for us to call her as a witness in the future beyond her date as commissioner, if she were not willing to come—and some of us may forgive her for not wanting to come back here if she's just left—I wouldn't want any circumstance in which we'd have to subpoena her. I think an exit interview is a very natural and normal process for a long-serving public official who has played a vital role for all of us as members of Parliament.

She's made recommendations to this committee before about the act, and I imagine that will be the topic of discussion for us. She also has valuable information and experience that is unique because she's the only Ethics Commissioner our country has ever had, as far as I know. Why not take the opportunity? She's available. We're available. Let's do this.

That's my motion.

[The Chair, Conservative, Bob Zimmer]

We've all heard the motion. Is there any debate?

Mr. Erskine-Smith.

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

My understanding was that she was going to come in January or February, and we were going to begin a study on her recommendations from 2013. The idea was not that we were just going to bring her in on estimates, but it was to be a more fulsome study of her recommendations. I don't know why that changes.... If she's not the current commissioner, she'll be the past commissioner and she'll still have made those 2013 recommendations. If we have a new commissioner at the time, we can bring them both in, frankly, and have that conversation.

Given the schedule we have, my view is—and I think it's shared by my colleagues—that we've had this discussion, and let's stick with the schedule we have.

[The Chair, Conservative, Bob Zimmer]

Mr. Cullen.

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

The discussion we had was informed erroneously at the time that we would see her in a couple of weeks anyway during this estimates process. I was wrong in that. I assumed she had made an estimates request, and she hadn't.

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

That was not my understanding.

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

To the notion that, in late January or February, she would be a private citizen, that may be of some benefit and it may not. Since she is the Ethics Commissioner right now in standing, it is this committee's prerogative and request that we can call her forward. She's available. We aren't busy.

Clearly an exit interview is a normal business practice in any business I've been involved in. The idea of exit interviews is that you do them before the employee leaves. You don't do them after they've left, because getting them back, in my experience, can sometimes be tricky, especially one who's been under a great deal of both public and private attention.

The notion I put forward is this: why not have the conversation? It certainly does not do us any harm, and I think it could greatly inform the process and the questions we would put to a new Ethics Commissioner. It would also help me, at least, and I imagine other committee members, frame the scope of any study we're going to do on the ethics rules as they sit right now based on her most immediate and current experience.

[The Chair, Conservative, Bob Zimmer]

Is there further debate?

Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

Thanks, Chair.

I would support the motion, basically because a sitting commissioner has a greater ability and greater authority to speak about the post she's holding, about the investigations, the reports, and the authority she has, and the responsibility that she still has. I think it would not be unexpected to find that if she appeared before the committee after the fact, after she had stepped down, she would be exceptionally discreet in making any comments on the operations of that office as a former commissioner.

If she's available, and if she's willing to talk to us—again, with some of the limitations that we know she could well invoke—it would be refreshing to hear her views about how the office has operated, and how she believes and recommends it should operate in future, after her having served for a very long term as commissioner, and during some fairly turbulent times.

[The Chair, Conservative, Bob Zimmer]

We'll have Mr. Cullen, and then Mr. Erskine-Smith.

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

I'm trying to imagine the scenario as well if there were a current and a former commissioner sitting side by side, a scenario in which the former would want to, out of respect for the new one, be more than discreet, actually. That's the concern. She's the sole person in that position right now and can solely speak with authority, without any concerns about somebody sitting beside her who is standing in the position. To assure committee members, because the Ethics Commissioner has to always be discreet, I'll say this publicly. There's no interest in my mind in asking questions directly related to any of the investigations she has ongoing right now, because her answer, I assume, properly would be, “I'm not going to talk to you about that.”

Also in the current conversation has been the notion of certain aspects of the ethics act that she has looked at and recommended on previously—eight months ago, I think, was the last one, and then back in 2013. If she has any reflections as she's leaving the post, it's weeks later that she will no longer be the Ethics Commissioner. My experience has been that's when people can often be most instructive and most constructive. In three weeks, she won't be the Ethics Commissioner anymore. I find that then people are much freer to speak directly to things that we need them to speak to rather than having to worry about the next two, three, or four years of their time in the office.

I think this is an opportunity for us. We have the time. She has the time. It certainly doesn't hurt anything that we're looking to do, so why not take the opportunity that's available to us?

[The Chair, Conservative, Bob Zimmer]

Mr. Erskine-Smith.

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

We may not have the time, which is I think why we suggested January or February in the first place, but my understanding is that if we're discussing the 2013 recommendations, nothing ought to change, whether she's sitting or not sitting. We're talking about her 2013 recommendations, but this idea of an exit interview is a different way of framing the conversation.

I wouldn't mind if we were to stand down for five minutes. I have my views, but I wouldn't mind consulting my colleagues on that proposal.

[The Chair, Conservative, Bob Zimmer]

We can. We have witnesses today, but again, the committee is in charge of its destiny.

You have five minutes. I'm going to stick to that. In five minutes, we'll reconvene.

[The Chair, Conservative, Bob Zimmer]

Despite the humour, we'll call the meeting back to order.

Mr. Erskine-Smith.

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

Having consulted my colleagues, I think we're all of the same view that we just stick with the schedule as we've previously agreed upon. As I've said, I don't think there's any magic in having.... She's still going to be the former commissioner speaking to a decade of experience, and certainly still speaking to her 2013 recommendations, which is the point in the first place.

That's the view from this side of the table.

[The Chair, Conservative, Bob Zimmer]

Is there any further debate?

We'll call the vote.

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

May we have a recorded vote?

[The Chair, Conservative, Bob Zimmer]

A recorded vote is what I assumed.

(Motion negatived: nays 6; yeas 3)

Thank you, Mr. Cullen.

We'll proceed to hearing from our guests today.

Go ahead. Our apologies again for once more delaying you. Committee business is what it is.

Thank you.

[Layla Michaud (Deputy Commissioner, Investigations and Governance, Office of the Information Commissioner of Canada):]

Mr. Chair, thank you for the opportunity to appear before you today. My name is Layla Michaud. I'm the deputy commissioner, investigations and governance. I'm also the chief financial officer for the Office of the Information Commissioner of Canada.

I'm here to seek the approval of the committee for supplementary estimates (B).

The Access to Information Act establishes the Information Commissioner as the first level of independent review of institutions' decisions on disclosure in response to access requests. Requesters who are not satisfied with how institutions responded to their access request have the right to complain to the OIC.

The Commissioner is required by law to investigate all complaints within her jurisdiction. These investigations are conducted in an efficient, fair, and confidential manner. For the past few years, we have been of the view that the current funding levels for the OIC are insufficient for the office to properly fulfill its mandate to protect Canadians' access to information rights.

Underfunding of this office has been endemic for years. We have made repeated requests for additional permanent funding. To date none have been accepted.

Last year this committee approved temporary funding for the office of $3.4 million for one year. This funding was a fit-gap measure put in place pending the adoption of Bill C-58. With this funding we resolved 2,245 complaints. This was the highest number of complaints resolved in any year of Commissioner Legault's mandate.

Last year the Office of the Information Commissioner made another request for funding but this request was not included in budget 2017. However, since the office lapsed a portion of its funding in 2015-16 and in 2016-17, we now seek your approval through supplementary estimates (B) to reprofile this lapsed funding in the amount of $1.8 million. With these funds, the $1.8 million, we plan to hire 14 consultants and resolve a total of 1,900 complaints.

The office senior management team will closely monitor results. Our performance is also followed by our external audit and evaluation committee on an ongoing basis. However, this request is again a fit-gap measure and will not resolve the office's ongoing funding issue.

For this reason, a permanent funding solution continues to be needed for the office to properly fulfill its mandate and provide the independent oversight Canadians deserve. Hence, we will continue to work with the Treasury Board of Canada Secretariat and the Department of Finance to ensure Canadians' access rights are protected.

In closing, I ask that you approve this request to re-profile the $1.8 million in lapsed funding, through Supplementary Estimates B.

Once again, thank you, Mr. Chair, for the invitation to discuss our request for funding and I hope we have the opportunity to discuss a more permanent solution for the office's funding in the future.

I would now be pleased to answer your questions.

[The Chair, Conservative, Bob Zimmer]

Thank you, Ms. Michaud.

We will start off our seven-minute rounds with Madam Fortier.

[Mona Fortier, Liberal, Ottawa—Vanier, ON]

Thank you, Mr. Chair.

Ms. Michaud, thank you for answering our questions this afternoon.

In the OIC's 2017-18 departmental plan, you stated that current staffing levels are insufficient to address the current inventory of complaints, absorb the number of new complaints and undertake complex investigations.

What level of staffing do you think you would need to address complaints and undertake investigations in a timely manner?