Information & Ethics Committee on Oct. 26th, 2022

[Ken Rubin]

Trying to get a public employee to talk to you is like trying to do something that you can't do. We have a serious problem in this country when people are intimidated by excessive rules from central agencies like Treasury Board, the Prime Minister's Office and the PCO. That intimidation ripples through everything we do. When corporations add their two cents and objections and when law enforcement says it's a matter of national security, on and on it goes. You don't stand a chance if you're just the average person. What we have to do is get rid of those—not the people, but the attitudes—and start from a constitutional right to know.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Gourde.

Do you have any other questions to ask? You have two minutes left.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I'm waiting for Mr. Conacher to respond.

[The Chair, Conservative, John Brassard]

Okay, I'm sorry.

[Duff Conacher]

The more the scandalous behaviour happens, whether it's dishonesty, unethical behaviour, secretive behaviour or waste, the more it becomes routine and the less it becomes news and the more accepted it becomes, as Mr. Cutler was highlighting. That leads to decline. That's why we need these wholesale systemic changes to change the culture, to penalize wrongdoing, to discourage violations of the public's right know, and reverse the trend, which is more and more encouragement of denial of the public's right to know. If these changes are not made, things will just get worse.

[The Chair, Conservative, John Brassard]

Mr. Gourde, you have one minute left.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

I have no more questions.

[The Chair, Conservative, John Brassard]

All right.

Next we're going to go to Mr. Bains.

Mr. Bains, you have five minutes, sir.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you, Mr. Chair, and thank you to our witnesses for joining us today.

My first question is for Mr. Conacher.

In your work review of access to information and privacy systems, what were your findings with respect to provincial ATI systems and their performances?

[Duff Conacher]

The provincial laws are generally based on the federal law, which happens a lot in Canada if the feds pass a law. The same thing has happened with the lobbying law and with some of the ethics rules. The provinces essentially copy it.

We see the same loopholes across the country. Some of the provinces have order-making power for the commissioners of the kind the federal commissioner has been offered and given recently, but that has not been enough to stop the denials and delays because, again, there are no penalties for violating the law.

If you park illegally anywhere in Canada, even if you're doing no harm and you're not parked in front of a fire hydrant and it's no bother to anyone, you'll pay a higher fine and receive more of a penalty for that than for a fundamental denial of the public's right to know key information that would reveal government wrongdoing and wastes of billions of dollars. That's a perverse system we have.

Some of the provinces have a public interest override. It's not strong enough, because the commissioners' enforcement powers are not strong enough. There are a few provinces with a few measures that are better than the feds' measures, but overall, the performance is the same because the same loopholes are there. It's the same weak enforcement and lack of penalties for these fundamental violations of key democratic rights.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

You've talked about timelines previously. Which Canadian jurisdictions have the shortest and the longest ATIP response timelines?

[Duff Conacher]

That's very difficult to summarize generally, because there are multiple institutions and it's changing year to year.

For example, soon after the Federal Accountability Act was passed, the Canadian government extended the law to 15 more public federal institutions, and there was suddenly a huge backlog of complaints and delays as those institutions got up and running. It's very difficult to generalize in that way.

The key thing is to remember that we are 54th or so in the world, so we're way behind in terms of ensuring an effective and timely right to know.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

I'll go to Mr. Cutler.

In this committee at a previous meeting, a witness testified that the Office of the Information Commissioner has adequate funding and that the issue is the internal allocation of resources.

Do you agree? Why or why not?

[Allan Cutler]

I cannot agree or disagree. I can only tell you that the job's not getting done. If they need more funding, give them more funding to hire people who actually work—not just executives.

I don't like waiting in line and having to hope that one day they'll pull me out. I'm also waiting as they prioritize the list, so I get put down at the bottom and the media get put up higher. There's a problem in the allocation, but also in the ability to do the job. If they need more people, give them that, but make certain that the people are workers.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Thank you.

While the government reviews what changes need to be made in the long term, are there improvements government can make to the ATIP system in the short term?

Any one of you can answer that.

[Ken Rubin]

Yes, they could stop quoting every damn exemption that they can creatively use. They can get off their whatevers and answer the requests instead of waiting five or 10 years. They can do a lot of things, but they have an attitude problem about it, so they don't want to do them.

As for the provincial governments, they are equally first-generation secrecy places. They have the fees that they can still use as a barrier. What they use federally instead of a barrier is they say, “We'll give you a 120-day or 320-day time extension. Go away.” It's bad.

[Parm Bains, Liberal, Steveston—Richmond East, BC]

Okay. Thank you.

Those are all the questions I have.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Bains.

Mr. Villemure, you have the floor for two and a half minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much, Mr. Chair.

I'd have been happy to use Mr. Gourde's and Mr. Bains' minutes.

Mr. Rubin, this week, an organization received 229 blank pages in response to an access to information request it had submitted.

What do you think of such treatment?

[Ken Rubin]

Well, I guess they had something really important to say if they couldn't get it out in about five pages. That's common. That's not uncommon at all.

They have machines now. They don't even have to be an access officer. They can say section this or section that, and it's all gone. It's just a blank page.

Really, one of the most positive things they do provincially is that if they're going to exempt a document, they have to list not only which exemptions they want, but the date and place of the document. Then, if someone wants to appeal it meaningfully, they have a bit of an idea of what foolishness has been done to give them nothing.

[René Villemure, Bloc, Trois-Rivières, QC]

How very interesting.

Mr. Rubin, in your opinion, are there any entities or organizations excluded from the Access to Information Act that should not be?

Are enough organizations covered by the act?

[Ken Rubin]

No. Particularly the private sector, who sort of live off the teat of the government in many ways—

[René Villemure, Bloc, Trois-Rivières, QC]

How about the government, Mr. Rubin? Are there any government agencies not covered under the act that should be covered?

I'm thinking of the RCMP or other entities like it, for example.

[Ken Rubin]

It's hard to keep track of all the subsidiaries of some of the Crown corporations and whether ones like Canada Post are covered or not, but if you have significant funding.... NavCan is called private, but it's doing a public function. There are so many agencies—including, by the way, NGOs sometimes—that should be covered under legislation. We all shouldn't be under the table. We should all be above the table. We all should be on a level playing field for release, not getting “no” 500 ways.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you very much, Mr. Rubin.