Information & Ethics Committee on April 18th, 2023

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

I am comfortable saying that we will, later this year, be able to present the latest work that we have been doing and also present an action plan to show how we can make progress on this.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Could you tell us in which quarter of this year you will provide that?

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

I will tell you that I won't make any promises, but I will deliver that this year.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Barrett.

We have Mr. Fergus for three minutes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair.

Thank you to the President of the Treasury Board. I have a question for her.

When the Information Commissioner appeared before the committee, she referred to an evaluation by the Centre for Law and Democracy which ranked Canada 51st among various countries for its access to information system.

Is this ranking useful in evaluating our access to information system?

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

Thank you for your question.

While that ranking is interesting, it is not a useful scale. The scale is based on legal frameworks rather than operational realities. I do not think anyone believes that Russia or Afghanistan are more transparent than Canada because they ranked higher.

It is also noteworthy that this ranking does not consider proactive publication either which, as you said, is essential to a strong access to information system. It was noted earlier that the global data barometer ranked Canada seventh for open data.

I think Canada should continue to examine this.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Madam President of the Treasury Board, I would like to move on to another matter. My esteemed colleague Mr. Kurek mentioned this, but I also made an access to information request and, to my great surprise, received an answer in 36 hours. It was clear and quick, and I got a lot more information.

We know the system has its challenges, which definitely have to be addressed, but it would be an exaggeration to say that all cases are problematic and that the system is completely useless. That is not the case, in fact. Moreover, as you said, the challenges relating to access to information requests involving the Department of Immigration are not representative of the average access to information request.

Can you elaborate on that?

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

It is basically what I said earlier. To strengthen the system now, we have a lot of opportunities to make administrative changes. Among other things, Treasury Board is working to determine how we can more effectively digitize documents and make them available. We are looking at the Open Government portal, a tool that will be essential in tracking the requests that are made. There are also other administrative changes that can be made.

The Access to Information Act clearly states that, after five years, there must be a review of changes to the act that would be advisable. We have this opportunity to look at what we can do together, and I thank the committee for that.

[The Chair, Conservative, John Brassard]

Thank you, Madam Minister.

I'd like to follow up on Mr. Barrett's question. When you say we could expect that “this year”, are you talking about calendar year or fiscal year?

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

I love that question.

As you may understand, we're working very hard right now to bring forward an action plan and also bring back more information to your committee, Mr. Chair. I will work as hard as I can with the team members to do it this year.

[The Chair, Conservative, John Brassard]

Minister, you'll also know that this is an issue that the committee has been dealing with since the original motion was passed in June of last year. There was a lot of interest in this. We've been hearing consistently about a broken ATIP system. We've asked the analysts and we've received, for your information, 26 recommendations in an interim report. We expect, not just given your testimony but also from the Information Commissioner and others who are coming behind you, that we will have far more recommendations than that for you to consider. We are certainly looking for this system to be fixed.

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

I welcome those recommendations, Mr. Chair. I thank the committee, of course, for the work you've been doing for such a long time. We will be looking forward to looking at those recommendations and seeing how we can reinforce our system. We both believe in that.

[The Chair, Conservative, John Brassard]

Okay. Thank you, Minister.

Thank you, Mr. Burt, Ms. Luelo, members of the committee.

We're going to suspend for a couple of minutes as we prepare for the second panel. I'll just remind everyone that we do have votes around 5:45. I want to get as much information in from this panel as possible.

Thank you.

[The Chair, Conservative, John Brassard]

I'm going to call the second hour of this meeting back and welcome our witnesses.

We have Ken Rubin, who's an investigative researcher. He's here as an individual. From the BC Freedom of Information and Privacy Association, Mike Larsen, president, is on Zoom today. From B'nai Brith Canada, we have David Matas, senior legal counsel, as well as Michael Wenig, a lawyer with Matas Law Society.

Just before we begin, we do have bells at 5:15 and votes at 5:45. I'd like to get to 5:30. Do we have unanimous consent at this point to go to 5:30?

[Some hon. members]

Agreed.

[The Chair, Conservative, John Brassard]

Okay. That's perfect. Thank you. That should give us enough time.

Mr. Rubin, I want to welcome you. You have five minutes. Please go ahead.

[Ken Rubin, Investigative Researcher, As an Individual]

Mr. Chair, for a minute I thought I was in a study session instead of a serious legislative committee, but I'm going to show you why you have to take things seriously.

Since I came to testify nearly six months ago, several detrimental changes to the right to information have occurred.

One is the refusal to call a public inquiry, given the lack of substantive public information on foreign influence on Canadian affairs in elections. Another roadblock is the government's accelerated use of artificial intelligence as part of its largest switch to data-driven decision-making operations, which the minister was hinting at. There is also mounting evidence of secrecy in government contract outsourcing. That comes with the comptroller general cautioning officials not to say or reveal much. New entities like the Canada growth fund are being set up largely outside the access to information regime. Public inquiries have made releases showing that dysfunctional and secretive cultures of the RCMP and National Defence are being allowed to flourish.

In addition, the new federal employee hybrid workplace scheme makes processing access requests more difficult and less of an essential service.

Finally, before the committee, it's very late and she didn't really get into the Treasury Board review, with no recommendations and no hope for any recommendations except some vague action plan. She only confirms that the government wants to impede and delay meaningful access reform. The truth is that Treasury Board has done incredible harm over four decades, making full disclosures impossible.

This committee must sanction Treasury Board for its inept, self-serving review and recommend that Parliament remove it from having a central role in access to government records. In its place, the committee should recommend that an arm's-length freedom of information agency be set up under a revised law to handle and promote public information disclosures. What is first required is that the right to information squarely and clearly should be seen as a guaranteed constitutional right falling under the freedom of information section of the charter.

A transformative right to know has to be immediate with full disclosure of health, safety, environmental and consumer data, with the same disclosures for decision-making records and financial transactions and accounts. That requires quick access without fees. Should officials not honour their obligations for documenting, servicing and disclosure but try all kinds of creative avoidance, they must be subject to stiff penalties.

The inclusion of broad coverage of agencies receiving or using public funds can no longer be ignored. What also has to come to an end is the broad array of exemptions and exclusions to access. Authorities have created myths about cabinet and bureaucratic operations and records being sacrosanct. This must change as places like New Zealand have shown it can.

The last time around in Bill C-58, what was created and what needs to be undone was a retreat from full disclosure through a two-tier system. It's a system in which sanitized summary data on permanent exclusions of ministers and the Prime Minister's Office was falsely sold as a so-called advance. Ottawa needs to drastically change from being a place of spin communications, closed-door meetings and gagging employees.

Canadians need a dramatic new way to access data and be able to participate in and know about Canadian government affairs.

This committee and its 28 or so recommendations can help lead the way. Let's hope so. The minister isn't going to do it for you.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you so much, Mr. Rubin. You were under time, and we always appreciate that.

Next I have Mr. Matas.

You have five minutes to address the committee. Please go ahead.

[David Matas, Senior Legal Counsel, B'nai Brith Canada]

Thank you very much.

I'm senior legal counsel to B'nai Brith Canada. I have with me Michael Wenig, who's here to help answer questions. Mr. Wenig has been working with another lawyer at B'nai Brith, David Rosenfeld, on the requested records that we discuss in our brief. He has also helped to draft our proposed amendment to the Access to Information Act.

Today is Yom HaShoah, Holocaust Remembrance Day, and I welcome the opportunity to address the committee on the subject of remembering the Holocaust.

Canada, as a member of the International Holocaust Remembrance Alliance, is committed to Holocaust remembrance. To remember the Holocaust, we must remember the victims, but we must also not forget their murderers. While the murderers are alive, that means bringing them to justice. Once they are gone, it means providing public access to the record of their atrocities.

During the Holocaust, the murderers were in Europe. After the Holocaust, the murderers scattered around the world to escape justice. Thousands came to Canada. Howard Margolian, a historian with the war crimes unit with the Department of Justice, in his book Unauthorized Entry, estimated that 2,000 Nazi war criminals and collaborators entered Canada after World War II. Canada's program on crimes against humanity and war crimes stated in one of its reports that, since beginning its work, the Department of Justice had opened and examined over 1,800 files.

The effort of understanding and learning the lessons from the Holocaust must never stop. For that history to be written, the files of those who have been identified to the war crimes commission or the Government of Canada, or investigated by them, must be made public. We have a duty to the victims not just to remember that they died but why they died and how they died. The picture of the memory we paint must be real and complete. That picture must include the murderers.

Right now, we are woefully short of meeting that goal. The efforts of B'nai Brith Canada to obtain access to relevant files and documents have been constantly frustrated and have gone nowhere.

One element is part II of the Commission of Inquiry on War Criminals. That part II recommended urgent attention to 20 files and further investigation of 218 others. We don't have that part II. We don't have the names of those who were recommended, and we've asked for this without success.

There is the follow-up to part II. What happened to those 20 cases of urgent attention and the 218 for further investigation? We've asked for that. We don't know.

There was a report commissioned by the Commission of Inquiry on War Criminals on the history of Nazi war criminals in Canada from the 1940s to the present. Mr. Justice Jules Deschênes recommended that the historical report be made public in its entirety, but it was not. There were substantial deletions through our access to information request. We've had some of them removed, but there are still significant deletions that remain.

Then, of course, there are the 1,800 files that the Department of Justice and the RCMP were dealing with. What happened to them? Who are they? Again, we don't have that information.

We're recommending two proposals.

First is to amend the Access to Information Act so it would mandate disclosure of records relating specifically to alleged Nazi war criminals in Canada and to any other Canadian residents who have been complicit in carrying out the Holocaust.

Second, we're recommending the establishment of a publicly accessible digital archive of Holocaust materials by requiring all government agencies to compile and submit to Library and Archives Canada all of the agencies' Holocaust-related records, and then require Library and Archives Canada to organize and place the records in a digital archive that is readily accessible to the public.

Now there is something very specific about the Holocaust archives in the European Union general data protection regulation, which provides for specific public access to those sorts of archives. There are also some statements, policies and recommendations in the International Holocaust Remembrance Alliance about access to archives about the Holocaust: that they be made available to independent researchers. Canada, of course, is a member of that alliance.

Philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” We cannot remember a past that remains hidden from us. Only through public access to Holocaust archives can we learn lessons from those archives.

Learning lessons from the Holocaust is a legacy we can create for the victims, creating meaning from the senseless death of so many millions of innocents. To learn those lessons, we need access to the archives that can convey them.

Thank you very much.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Matas. You're right on time. I appreciate that.

Mr. Larsen, you're next for five minutes, sir.

[Mike Larsen, President, BC Freedom of Information and Privacy Association]

Thank you very much.

My name's Mike Larsen. I'm the president of BC FIPA and a faculty member in the criminology department at Kwantlen Polytechnic University. I'm joining you from my office here on the unceded territories of the Coast Salish peoples.

I'm grateful to the members of the committee for inviting us to speak with you again after our first presentation in the fall. I'm grateful for participating in the study of Canada's access to information and privacy systems. This is really important work, and we commend the committee for giving it sustained attention.

When I appeared before the committee in the fall of 2022, I provided an overview of the features of a strong and effective access to information system for Canada. I also provided a written brief, focusing on eight key areas to reform the ATIA.

Since that time, the Treasury Board presented its “Access to Information Review Report to Parliament”, covering many areas for possible reform and further study. I'll focus my remarks today on just a couple of themes that warrant emphasis.

The report addresses the importance of a professional framework for ATIP staff. We call for investment in a culture of access and note this requires adequate training and resourcing and a real commitment to transparency at the leadership level. That includes a consideration of how government responds to the work of this committee and to the Treasury Board report.

Senior officials, elected representatives and cabinet set the tone. When the release of information is selective and strategic, shaped by political considerations, or when witness after witness, commissioner after commissioner and committee after committee describe the ATI system as broken, fallen behind or dysfunctional, and the response is to leave the official status quo substantively unchanged, this comes across as an endorsement of opacity, not a commitment to transparency.

The TBS report emphasizes the deep connections between trust in public institutions and the transparency of these institutions. From our perspective, this is absolutely foundational. A line in the report that stands out to us is:

Across multiple channels of engagement input into this review, the greatest complaint about the ATI regime is poor compliance with the law.

This is discouraging to read but not unexpected. Focusing on improving compliance, while essential, often leaves us looking backwards, rather than at substantive reforms to the law that are necessary to build a modern access regime that serves the public interest.

What kinds of reforms? The TBS report mentions a number of possibilities. In our review, there are some serious priorities.

First is creating a legislated duty to document to ensure that core decisions are recorded. Second is embedding a strong public interest override in the act. Third is imposing caps on extensions to requests, rather than relying on the open-ended and nebulous reference to extensions for a reasonable time, and requiring commissioner authorization for further extensions. Fourth is shifting the exemption framework to reflect a harms-based approach, rather than categorical or discretionary exemptions based on classes of record types. Fifth, following UNDRIP, is removing barriers to access to information for indigenous communities and moving towards indigenous data sovereignty, particularly as it pertains to records pertinent to specific claims and reconciliation. Sixth, though it was not emphasized by the TBS, is including all entities that deliver public programs or services under the scope of the act, including the PMO and ministers' offices, and ensuring that federal political parties fall under the scope of federal privacy laws, recognizing voters' rights to know about how their personal information is being used. Finally, we have radically revising and limiting the section 69 exclusion of cabinet confidences, shifting it to a limited exemption, subject to review.

How governments approach the matter of cabinet confidences is a bellwether for their general position on transparency. I note that, as we meet today, the Supreme Court of Canada is hearing an important case about whether the mandate letters issued by the Ontario premier to his ministers are subject to disclosure under FOI, or whether they will be withheld as privileged cabinet deliberations. Several provincial attorneys general are intervening in support of an expansive reading of cabinet confidence. BC FIPA is intervening in support of the public's right to transparency.

The case reveals much about how Canadian governments at all levels think about transparency. It's absurd that, in a democracy, documents such as mandate letters, which are essentially the marching orders for elected governments, can be withheld from public scrutiny, yet this may be precisely what cabinet confidence exclusions permit.

These are all core areas for law reform. I really want to emphasize that. The TBS report also discusses administrative supports, the modernization of technology and process, and expanding commitments to open government beyond the auspices of the ATIA. These are all worthy initiatives, but they can't take the place of a modernization of the law that underpins the right of access to information.

We're at a crossroads for transparency in Canada. Trust in public institutions is eroding. FOI regimes are failing to provide the public with timely and complete access to information. Some governments, notably B.C., are actually backsliding by introducing application fees for FOI requests. Information that pertains to the public interest is parked behind broad exemption clauses or the brick wall of cabinet confidence. Our access system often functions as an impediment to reconciliation.

On a hopeful note, and I will conclude here, there's a great deal of consistency in the recommendations for reform that have emerged over the years. Indeed, I would argue there's a clear road map. The question, therefore, is not, “What's to be done?”, but rather, “Will we act?” On behalf of BC FIPA, I hope the answer is yes.

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Larsen. We appreciate that. It's right on time as well.

We're going to move to our first round of questioning.

Mr. Barrett, you have six minutes. Go ahead, please.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks, Mr. Chair.

Thank you to the witnesses for being here today.

Mr. Matas, I want to thank you for drawing our attention to the Holocaust Remembrance Day. I think that's incredibly important.

I'm going to use the beginning of my time to give the committee notice of a motion. I'll read it into the record:

That the committee request that the government table the following documentation in unredacted form, and that the documents be published on the committee website:

1. Part II of the Deschênes Commission Report;

2. Alti Rodal, Nazi War Criminals in Canada: The Historical and Policy Setting from the 1940s to the Present (the Rodal Report)(submitted to the Commission of Inquiry on War Criminals chaired by Justice Jules Deschênes in 1986); and

3. All Department of Justice and RCMP Nazi war crimes files including all investigation files relating to those individuals recommended for investigation by the Deschênes Commission.

That's the end of the notice. I will send that to the clerk, as well.

I'm going to continue with my time.

[The Chair, Conservative, John Brassard]

Okay. Thank you, Mr. Barrett.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

My first question is for you, Mr. Matas.

Can you tell me, in your opinion, what you believe the government's definition of “Holocaust-related records” would ideally look like?