Information & Ethics Committee on April 18th, 2023

[Ken Rubin]

I believe the government doesn't want to do anything except millions of dollars on digital stuff, which will make access to information harder and will make personal information and the consent of individual Canadians to give it harder.

I have nothing against digitization, but when it's being done at the cost of millions of IT contracts and the enterprise architecture at Treasury Board that the public knows nothing about, and now it's going to be called an action plan and there are no legislative amendments that get—as Mike Larsen is saying and Canadians are saying—any more material, why should we have to, as MP Barrett said, pass motions in committee or have public inquiries mandated like the Public Order Emergency Commission, the Rouleau commission? Why can't we, just as average Canadians, get information?

We can't do that because this government doesn't want to even start the process. They've had every opportunity. The last time they retreated the bill, they didn't advance the bill.

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

When you hear about openness and transparency, I suspect you are skeptical. I also suspect that you have the same opinion as the Information Commissioner as to the culture of secrecy.

[Ken Rubin]

There's more than a culture of secrecy. There's a culture of corruption and conflict of interest, because once you start hiding contracts, as I was alluding to.... There has been a lot of press about that, not just sole sourcing but awarding them to your friends and so on. If you can't get the material about that on a timely basis, then you have more than a culture of secrecy.

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

You recommended that Parliament create an independent access to information agency.

In your opinion, what would that agency do differently?

[Ken Rubin]

I'm sorry. I didn't get the—

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

You asked Parliament to create an independent access to information agency. What would that independent agency do differently?

[Ken Rubin]

It's not coming through, unfortunately.

[A voice]

What is the difference between an independent agency and what we have now?

[Ken Rubin]

It's like night and day. Why would you want a cabinet committee called Treasury Board, whose main goal is to repress information, in charge of your access to information?

If you had access officers who weren't being trained and more money put into the CG office to brainwash them into gatekeeping so that there would be more exemptions applied.... If you had officers in the central agency who were trained—like, say, Mexico has a better system—who are there to promote and release information, who are not there to line by line try to delete information, when you have agencies that are in need of extra services, you'd have the pool of people there.

I think we've put the wrong horse and cart together here.

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

Thank you very much, Mr. Rubin.

Mr. Larsen, you mentioned earlier that faith in the current process is eroding.

What could be done to rebuild people's trust in the access to information system?

[Mike Larsen]

Thank you very much for the question.

I think rebuilding trust is a vital step for this committee to be thinking about. One thing that can be done, I think, is to impose some limitations on the delays that are systemic in the system. Right now, the Access to Information Act permits open-ended extensions and consultations that can further exacerbate extensions.

In practice, what this tends to mean is that people who are seeking to exercise their right to know and to retrieve records that will help them to make informed decisions as part of a participatory democracy are just met with nothing—a silence—in many cases. I think I said this in my testimony in the fall: In a silence, people feel free to fill in the blanks in terms of speculation, conspiracy and ulterior motives.

Imposing some clear timelines that are actually followed and enforceable, I think, is a vital step to be made here.

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

Could you make two more suggestions in the remaining time, in addition to the one you already made?

[Mike Larsen]

Absolutely. We have quite a few in our brief here.

I think the cabinet confidence issue is also an important one here. Many of the records that people are really interested in pertain to why government is doing what it's doing, how it's rationalizing those decisions, who is making those decisions and on what basis. Let's be honest: A lot of those records actually do pertain to the deliberations of cabinet.

Having what Mr. Rubin has characterized as a brick wall around cabinet confidences—I like that term—really does not serve the interests of the public's right to know. Definitely having some process so that this is no longer a sacrosanct provision but something that can be contested as a legitimate exception is important, I think.

The third thing, I would say, is imposing a harms test for the operation of exceptions rather than having categorical exceptions that deal with certain kinds of information. When information is withheld from the public—and it is our information; it's public information—it should be because releasing it would cause some kind of demonstrable harm, not simply because the government is exercising its power of secrecy.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Larsen.

Thank you, Mr. Villemure.

Mr. Green, you have six minutes.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much.

I'm going to put a series of questions to the witnesses. I'm going to ask them in a rather rapid-fire way. Don't be surprised if I interject to maybe take my time back and move somebody along. I'm going to ask you to try to be brief because I want you to have the opportunity to get on the record for as many different questions as we possibly can.

Mr. Rubin, in the preceding panel of witnesses, you heard me put a question to the President of the Treasury Board that responded to your statement that the legislative review appears to be “a delay tactic to prevent meaningful changes to access legislation”.

Can you expand on that briefly?

[Ken Rubin]

When you can't even bother to put in some simple amendments on times or even if it's cabinet records for 10 years instead of 20 years.... When you can't even bother to do that much, then you're not seriously considering doing things.

At the same time, in that delay, you're spending millions of dollars creating this digital system to leverage the way you want to do decision-making in the Canadian government in the future, which excludes more Canadians from knowing what you're doing. Then you have more than delay; you have deceit.

[Matthew Green, NDP, Hamilton Centre, ON]

To be clear, we're making pretty loaded statements and I want to give you a chance to substantiate them.

You mentioned AI, and we've certainly studied that at this committee. In your opinion, what role or what harms could potentially be caused by the use of AI in this “action plan” that they have with this modernization?

[Ken Rubin]

It would help if they would, first of all.... I mean they've listed in some places the millions of dollars that are going to AI companies, but they've never documented throughout the government, including Treasury Board, what uses are being made of AI or which banks are there.

Identifying the uses of them at least gives the public an idea of how much money and what the uses are, because some of them do involve personal information. That's something that has to be done for sure.

[Matthew Green, NDP, Hamilton Centre, ON]

In your writing, you also mentioned that the Treasury Board conducted a study, which was an internal evaluation and audit, that was not presented to those participating in the review.

Was that part of the reviews that have been made public since then, or are you privy to another internal review that you might want to—

[Ken Rubin]

I don't know. I thought the minister.... Some of the documents I got earlier on were that they were going to make a big deal of doing early action. They were going to come and release some things, like maybe a public interest override or some sop for Canadians. They have not done any of that. Those documents do exist, but they're not willing anymore to even consider doing those small changes.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Larsen, you talked a little bit about the role of cabinet confidence. I'll share with you, as a member of Parliament on the opposition side, that I believe—it's my opinion—that cabinet confidence is a mere convention of Parliament and not a legislative precedent or a legal precedent, and that the House of Commons ought to be the grand inquest of the nation and have complete access.

That's not the case. In fact, we are often as frustrated as regular citizens are in trying to get basic information.

In your opinion, can you comment about how the role of the government, being the client and simultaneously the solicitor, as was identified by the former attorney general, presents a bit of a problem in unpacking the role of cabinet confidence in access to information?

[Mike Larsen]

Yes, absolutely. I couldn't agree more that I would like to see our elected representatives able to cut through the barriers to transparency that are embedded in the convention—which is a good way of saying it—of cabinet confidence.

Previous governments and current governments seem to approach cabinet confidence as being something that's almost like a law of nature. It exists; it must exist. Even the Treasury Board's reports that we're referring to today have some of this language in there—that changing it would require change across many levels of government. Okay, let's change it then.

I think there is a lot of evidence to suggest that this doesn't allow for proper participation in the process. If our elected representatives can't get the information they need to participate and which you need to participate, then seriously that's not working.

[Matthew Green, NDP, Hamilton Centre, ON]

In any of your legal reviews, have you considered the increasing role, in fact, under this particular Prime Minister, of the use of secret orders in council?

[Mike Larsen]

Yes. I think we absolutely have to have transparency about where and when secrecy is used. What we start to get is a kind of layering of secrecy so that not only are decisions opaque but the basis of those decisions—the orders that inform those decisions—are opaque as well.

This goes back to what I mentioned earlier about the issue of trust and transparency. Secret orders may, in certain circumstances, be justifiable, but as a principle in a democracy, they seem to run roughshod against the principle of transparency and openness. I think they don't do anything to help us in terms of trust in government.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

Your organization submitted 16 recommendations as part of the public engagement process of the review, many of which were not reflected in the report. You may have heard me reference this to the minister.

In your opinion, why do the Treasury Board's conclusions differ significantly from the recommendations provided by those who participated in the public engagement?