Information & Ethics Committee on Oct. 16th, 2023

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

We still trust the Office of the Commissioner in both cases.

Where declassification is concerned, do you have any other suggestions to make besides the one about cabinet privilege?

[Caroline Maynard]

Declassification is another matter. It's about documents classified as secret or top secret. We're seeing documents from 60, even 80 years ago that are still classified when they should no longer be. We're suggesting that a process be put in place to ensure mandatory release of these documents. Right now, people need to file an access to information request, and then a lengthy process begins to find out whether the institution wants to declassify the information when it's reviewed. If certain documents had to be declassified, the information would be available more quickly and only documents that are still of a sensitive nature—there will always be some documents like that—would continue to be protected.

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

Would this require that the act be reviewed or that regulations be changed?

[Caroline Maynard]

Through policy, the government could implement a mandatory declassification process. That way, the legislation wouldn't have to be amended.

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

Perfect.

Thank you very much.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Villemure.

Mr. Green, you are up for six minutes. Go ahead, please.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much, Mr. Chair.

This is such an important line of questioning that I want to pick up from my friend from the Bloc.

Commissioner Maynard, of the OIC inventory for complaints in 2022-23, 15% include historical cases of national security. What would a robust declassification system look like, how often should cases be up for renewal of classification, and what would the metric be to impose that renewal?

[Caroline Maynard]

That's a good question. There are existing mechanisms out there. The U.K. has one. The United States has one. Australia has one, too. They're all different, and I'm not saying any of them are better, but we definitely don't have one here in Canada.

Whether you pick 60 years, 50 years or 80 years, even.... We've recently seen a case in which it was a legal opinion that was 80 years old and still was not going to be released.

We need a program with experts who are going to be sitting and deciding what can be declassified on behalf of Canada, and I think that would not just help my office but help Canadians understand their history.

[Matthew Green, NDP, Hamilton Centre, ON]

On that, it says that only investigators with a certain level of clearance may investigate certain cases. At what substantive level are investigators provided a higher clearance, and how quickly are staff trained and provided an opportunity to gain a higher level of clearance in order to investigate more complex cases?

[Caroline Maynard]

We don't have a special classification for the positions themselves; it's a special delegation from the minister. I have about 23 employees who have that delegation, and their clearance takes a normal clearance time, like for the RCMP clearance for secret. We have only a few top secret employees. It takes sometimes three to six months.

[Matthew Green, NDP, Hamilton Centre, ON]

You said that you had only a few top secret clearance employees. Is that an administrative barrier to being able to deal with some of the more complex cases that might have sensitivity or undue delay?

[Caroline Maynard]

It's definitely difficult to have somebody who has the expertise. Imagine, from my office, hiring these people. I understand that within the government it's difficult as well, because the same documents are being reviewed not only by my office but by the analysts in each of these institutions. Definitely, if the documents were declassified from the get-go, it would help the process ultimately.

[Matthew Green, NDP, Hamilton Centre, ON]

This is certainly not pertaining to this intervention that you're here for today, but I've heard the term “administrative sabotage”, and I certainly don't place that on your office. It's the way in which, across the whole of government or in government arm's-length institutions, there is a skirting of the laws.

In fact, a story published on October 4 has a headline that says, “'We're ashamed': Canada's information watchdogs sign joint pact, urging governments to fix FOI systems”. I'm just going to quote a couple of things, and then I'm going to invite you to respond, if that's okay.

The Globe's report that launched, called “Secret Canada”, has revealed that public institutions “skirt access laws, also known as freedom of information laws, by overusing redactions, failing to meet legislated timelines and claiming 'no records'”.

That's even when, in fact, they do exist. This is what I reference when I say “administrative sabotage”.

I believe you signed on to the resolution, and I'll allow you to speak to it in a moment. The report continues:

The resolution calls on governments to uphold seven “principles” related to the public's right to know. Chief among them is the idea that the culture of public institutions “must be founded on the fundamental principle that information under their control belongs to the people they serve.”

I won't reference the entire article. I'm sure you're familiar with it and probably have prepared to comment on it coming into this, given that this story broke just a few weeks back. I will allow for you to address that now and maybe just provide a context for how you feel that this resolution impacts the work you're able to do moving forward.

[Caroline Maynard]

Like I said in my opening remarks, all the commissioners last week felt that it is a really good time now to talk about access. The Globe and Mail did a really good job in putting that on the front pages.

We are in a place where information is key. Canadians don't trust governments. They need information to be factual, timely and provided to them. A lot of our jurisdictions—not all, but many—need modernized legislation. We need trained analysts and trained professionals to deal with that.

Ultimately, we definitely need a change of culture across the board. We need people who believe that giving information will make them feel better and empowered, not embarrassed and impoverished. We need government employees to feel that the leaders are behind them when they give access to information.

[Matthew Green, NDP, Hamilton Centre, ON]

I will share with you a quote from Michael McEvoy, and we share the perspective, which is this:

Where there is a vacuum of information created by government withholding information, that's where conspiracy theories, that's where disinformation is going to flourish.

Is that a statement you also agree with, and do you view what has been stated as the “erosion of access rights” as being a threat to the institution of democracy itself?

[Caroline Maynard]

I totally agree with Michael. Yes, we definitely need more information out there, not people trying to figure out what the information is.

As you said earlier, when you receive a document that's redacted and later on you find out through the investigation that the information that was redacted is not top secret, it's not a legal opinion, that's when the trust goes away. Why was that redacted in the first place, or why was the timeline missed, when it's a two-pager that you should have received in 30 days?

We need to help Canadians trust our government better, and the system of information is broken.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you so much for your candour today.

[The Chair, Conservative, John Brassard]

I appreciate that too, Matt, quite frankly.

Thank you, Madam Maynard.

We're going to the second round now. I have Mr. Barrett for five minutes, please.

Go ahead, Mike.

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

Thank you, Chair, and thank you both for being here today.

Your timing is quite fortuitous. In the Toronto Star this morning there is a story that says, “Documents reveal why RCMP didn't pursue criminal probe of Justin Trudeau in SNC-Lavalin affair.” It says:

The Royal Canadian Mounted Police declined to pursue a criminal investigation into Prime Minister Justin Trudeau’s actions during the SNC-Lavalin affair in part because the federal police force was thwarted in a bid to get confidential cabinet materials, newly released documents show.

That is not the documents they were seeking, just documents about the process that they used to seek them.

This came down to the RCMP googling open-source information, public information, to try to get the answers they needed, instead of having access to the information they were actually looking for. This, of course, is a scandal that saw the Prime Minister found guilty under the Conflict of Interest Act of using his power to interfere in the independence of the Attorney General for the purpose of helping his friends who were facing a criminal investigation, his friends in a multinational company.

The question this raises, of course, is whether Prime Minister Trudeau used his power to break section 139 of the Criminal Code, which says that everyone who “wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding” is guilty of an offence. If so, it would mean that he was using his power to help a multinational company that had defrauded and bribed its way around the world, among a host of other awful conducts.

This law, the Conflict of Interest Act, was broken. The question is whether the Criminal Code was broken in this scandal, the saga that saw Canada's first indigenous Attorney General fired and, of course, the then health minister having to follow her out the door.

Some knowingly and some unknowingly undertook a cover-up to make sure Canadians didn't get the answers they needed. This is tremendously concerning for Canadians. It's still the subject of media reporting all these years later. Five years later people are still trying to get answers about what happened, because Canadians have a desire to get the truth, and Canadians deserve that truth.

While you are here, I'd just like you to indulge me for a moment while I give notice of a motion, which is:

That, pursuant to Standing Order 108(3)(h) and in relation to media reports, the committee undertake a study to investigate why the RCMP did not pursue a criminal probe of Prime Minister Justin Trudeau and his involvement in the SNC-Lavalin affair; that the committee dedicate no fewer than four meetings to the study; that the committee invite Prime Minister Justin Trudeau to appear before the Committee for no fewer than two hours, in addition to any further witnesses the committee may consider relevant to appear; and that the committee begin the study forthwith.

We'll send that to the clerk.

[The Chair, Conservative, John Brassard]

Make it in both official languages as well, please.

You have a minute and 47 seconds. Go ahead.

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

Yes, absolutely.

How many orders have you issued to the government, Ms. Maynard?

[Caroline Maynard]

Last year I issued 157 orders.

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

How many were complied with?

[Caroline Maynard]

Most of them were. I think we have now up to nine cases on which the institution decided to challenge the orders and one on which they ignored the order and we had to apply for a mandamus to force them to respect the order that was issued.

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

I would like you to explain why you have to issue orders, what the threshold is before that occurs, but I don't think we have time.

Which departments would you deem the serial offenders, the ones that appear most often for which you have to issue orders?