Evidence of meeting #93 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 commissioner.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Caroline Maynard  Nominee for the position of Information Commissioner, As an Individual

9:10 a.m.

Conservative

The Chair Conservative Bob Zimmer

I don't think it was a point of order.

Continue on, Mr. Angus.

Thank you, Mr. Picard.

9:10 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Did that come off my time?

9:10 a.m.

Conservative

The Chair Conservative Bob Zimmer

No, it's not going to be held against you.

9:10 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you.

9:10 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I do believe that I have the tools, or that I would have the tools, using the Access to Information Act, to make sure that the access rights are respected, and to make sure that the limitation and exclusions that are provided under the act are not abused.

I don't see my role as a role of shaming, but more of educating and making sure that government is accountable. If, ultimately, the result is shame, it's unfortunate but it may happen. But the goal is not in terms of.... I agree with you, information is key for anybody in Canada to have confidence in the government. It's one of the government's priorities. They are saying that they want open government, so we need to work towards that. I think the promotion of disclosure, the promotion of transparency, getting institutions to understand the purpose of this, not that.... It's a burden, yes, but it's not going away. The access rights have been here for 34 years and we will continue to increase and promote that access.

9:15 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you for that.

Again, I want to be very clear on your role. Your role is to adjudicate whether or not documents should be revealed, why they should be revealed, or if they're going to be excluded if they meet the exclusions. That's what certainly, as a member of the opposition who uses access to information all the time, I look to.

I'm concerned that Madam Legault had said that some of these changes would make the ability to challenge government obstruction of the release of documents more difficult.

Again, I want to go back. Have you looked at the tools you can use to hold government accountable? Because I was really impressed where you said that access delayed is access denied. You also said that if they hold the information for a period long enough it becomes irrelevant. Do you have the tools?

9:15 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

Yes, I do believe that the new authority to issue orders, and within 30 days of the institution receiving that order, it's going to be public and published.... I will have no hesitation to use that tool to increase accessibility and accountability.

The other thing we have to remember is that if the institution is not in agreement with the order, the onus is now on them to appeal it to the Federal Court. But the commission, I am pleased to see, has not lost its authority to represent the complainant and appear in front of the court, which is a very unusual authority for a board, a commission, or a tribunal. Usually you issue an order and the order has to be so well written that it defends itself. But in the act the commission is actually allowed to represent the complainant and if there is a public interest or if there is a question in law or something that's really important for all Canadians, I will definitely not hesitate to do so.

9:15 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

That's excellent.

We have certain departments that are notorious for ignoring their legal obligations. The justice department is one of the big outliers.

I'll give you an example. Five years ago I did an access to information over the decision to suppress evidence in Ste. Anne's residential school cases. What were the briefing notes to the minister? What were the QP cards? We were denied for three years. The new government came in, and they refused to turn it over. Your predecessor threatened to take them to court. They agreed to turn over documents. They turned over, over the course of a year, 10,000 pages of blacked-out documents, which to me shows almost a complete disregard for the orders about which the Information Commissioner was threatening to take them to court. That was five years of obstruction. I had brown hair back then.

I am concerned that if the justice department will even ignore a legal action—and there are certain outliers, the justice department, RCMP, and a few others—how do you hold them to account?

9:15 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

Personally, I have no problem making a decision to issue an order—I wouldn't threaten for five years—on taking somebody.... Actually under the new act it wouldn't be the commission that would have to go to the Federal Court, but it would have to be following an order of publication.

When I say that access delayed is access denied, I will not wait that long to issue this order because, at the end of the day, as I said earlier, if you agree to disagree why are you waiting? Just pursue.

9:20 a.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Thank you very much.

9:20 a.m.

Conservative

The Chair Conservative Bob Zimmer

Thank you, Mr. Angus.

Next up, for seven minutes, is Mr. Erskine-Smith.

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Thanks very much.

You're potentially coming into the position at an interesting time because, of course, Bill C-58 has not yet passed the Senate and the current Information Commissioner has raised a list of concerns. I wonder how you foresee involving yourself in this debate if you are appointed.

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I know it's at second reading in the Senate. I don't know how long it's going to be there until it's enacted. I hope, if I am invited, and I have time to better understand all the issues, I'll be able to present myself. One of the concerns I have is that this authority to issue and publish orders under the current Bill C-58 will only come into effect a year after the act is approved. I don't know if there's a policy reason for the delay for that particular amendment to come into effect a year after everything else is in effect. I'd like to raise it because it's a new tool and I think it should be used—

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Strangely, the order-making powers only apply to forward-looking complaints and not the backlog of complaints, which is curious as well.

A lot of concerns were raised about section 6 and additional criteria that could allow departments to reject requests. Do you have any views on that particular provision?

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

As I said earlier, it is a concern when you have an amendment that could further limit or delay an access request. I'm happy to see that section 6 has been amended to add the institution cannot refuse to act on a request without the commission's authority or approval. That's a good thing, but that will definitely add to the workload for the commission, and we'll have to have some resources for that particular section.

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

The last question I have for you about Bill C-58 is the order-making power. You are a lawyer, and so one is the difference between a reasonableness review versus a de novo process gives you more power than the other. Do you have any view as to what would be most appropriate?

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

As a committee right now, we have a de novo review power and the decisions that the city renders are being reviewed on a judicial review standard. I have experience with both. When the decision is rendered and it's justified reasonable and very well detailed, it's really hard to change or to modify whether you are a de novo or a judicial review. My goal would be to make sure the orders are meeting all these criteria.

Again, I find the fact that the commission has a right and an authority before the court adds to the value of the order because you cannot just leave your order to represent itself, but you can explain it to the court.

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Given you are likely to be entering the role before it enters the committee stage at the Senate where there's the opportunity to make changes, I would encourage you to be actively involved in the process alongside Ms. Legault.

Are there any reasons to think we shouldn't nominate you?

9:20 a.m.

Voice

Oh, oh!

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I have three boys.

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Ha. But anything in your background?

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

I don't believe so.

9:20 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

Okay.

Your previous experience, as you mentioned, is you reduced the time for complaints from nine months to four months. Obviously backlogs and a culture of delay are incredibly problematic. Did you use particular tools in the successes you previously had? What do you expect to do in the current role to reduce the terrible delay?

9:20 a.m.

Nominee for the position of Information Commissioner, As an Individual

Caroline Maynard

My first step will be to understand the process. At the committee we reviewed every step of the way and made sure what we were doing was adding value to the process. Sometimes you do something just because you've been doing it. You don't question whether it gives you positive results. I think that coming in as a newbie, and with a different eye, maybe I'll be able to see, or question anyway, some of the steps, and make sure we're all consistent, if there are different groups, maybe making smaller groups, or including team leaders. There are a lot of things.

February 27th, 2018 / 9:25 a.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

I'm sharing the rest of my time with Ms. Vandenbeld, but I would encourage you to also sit down with...We've had a number of journalist organizations testify here. That's the purpose of the act. So much of the act is used improperly by people accessing their own personal information. It's not to say it's a completely improper use of the act, but it's not the core purpose, which is democracy, as Mr. Angus mentioned.

I would encourage you to sit down not only with departments and give them a hard time but also sit down with journalists, and see how we can better improve the processing behind the scenes.