Finance Committee on Oct. 21st, 2020

[Michael McLeod, Liberal, Northwest Territories, NT]

I have a point of order.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Mr. Chair, on a point of order—

[Peter Fragiskatos, Liberal, London North Centre, ON]

Let's get back to that work.

Mr. Chair, I'll let Mr. Julian finish his point of order.

[The Chair, Liberal, Wayne Easter]

There's a point of order from Mr. McLeod first, I believe, and then Mr. Julian.

Go ahead, Mr. McLeod.

[Michael McLeod, Liberal, Northwest Territories, NT]

Mr. Chair, I'm just looking at my screen. I don't know if we still have quorum. Can you do a quorum count?

[The Chair, Liberal, Wayne Easter]

Okay.

Yes, we have it now. We were a little close there.

Go ahead, Mr. Julian. You had a point of order.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Yes, Mr. Chair, but it's two and two, so obviously we did have quorum.

Mr. Chair, I would again question the relevance and the repetition. I do appreciate a good filibuster, as you know—my record is 16 hours to head off the softwood lumber sellout—but you can't repeat and you have to stay relevant. Mr. Fragiskatos has strayed wildly from that.

I would ask you to rein him in so that he sticks to the issue and doesn't repeat himself, which he has done now on numerous occasions. It would allow us to have the vote if he doesn't have anything more to say.

[The Chair, Liberal, Wayne Easter]

Mr. Fragiskatos, go ahead. The floor is yours.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much, Mr. Chair.

I'm coming to the end of my remarks here. I do take issue with Mr. Julian and other members of the opposition. I think Mr. Poilievre also used the term “filibuster” earlier. I don't consider this a filibuster as much as I do a spirited debate between colleagues who are on opposite sides of important issues. I won't apologize for being passionate about the issues at hand.

As a matter of parliamentary privilege, I will exercise my opportunity to put arguments forward as I see fit. Have I been accused of being long-winded before? Certainly I have been, by my opposition colleagues, yes, but I haven't seen Liberal colleagues intervene to tell me to stop speaking, so that is at least heartening.

I'll also mention, Mr. Chair, and I hope committee members didn't take it as disrespect, that when I was reading into the record the subamendment in its entirety, I was reading from my phone. My cousin sent me a picture of his new niece. That brought a smile to my face and—

[The Chair, Liberal, Wayne Easter]

This isn't relevant, Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

That's fine. I just received a picture and if there was a smile on my face, that's why it was there. I hope colleagues will understand that. I'm someone of Greek heritage and incredibly family-oriented, so when I saw the picture of—

[The Chair, Liberal, Wayne Easter]

Stick to relevance, Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I'm coming to the end, but I just wanted to clarify. I didn't get any message regarding a smile or anything like that, but I thought I owed it to colleagues to provide an explanation.

That's how I feel, Mr. Chair. You've heard my thoughts on the pre-budget consultations. You've heard what I, as someone who takes very seriously the idea of fairness, think about the subamendment. That's really all about justice. I'm someone who takes very seriously the need to hear from Canadians from coast to coast to coast regarding the pandemic. We should get on with the business of this committee.

I would propose to colleagues that we begin—

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Do that by voting. Let's have the vote.

[Peter Fragiskatos, Liberal, London North Centre, ON]

No, I'm sorry, Mr. Julian—

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Let's have the vote and move on.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Shall we actually take seriously this subamendment, which I hope my opposition colleagues will come on board with and whose merits I hope they will recognize? Why they haven't so far is beyond me, but perhaps they can explain that.

I'll stop there, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

We'll turn now to Ms. Koutrakis, followed by Mr. Fraser.

[Annie Koutrakis, Liberal, Vimy, QC]

Thank you, Mr. Chair.

Thank you, colleagues.

To my colleague across the way, Mr. Julian, I hope you won't call me out on relevance for what I'm about to say.

I'm in a celebratory mood, if you will, because this is my first anniversary—my one year—of being a member of Parliament.

[Pierre Poilievre, Conservative, Carleton, ON]

Hear, hear!

[Annie Koutrakis, Liberal, Vimy, QC]

Thank you, Mr. Poilievre.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Hear, hear!

[Annie Koutrakis, Liberal, Vimy, QC]

Thank you for that.

I just swayed a little bit to say I'm very honoured to be among my colleagues around the table on this very important finance committee with all the important work that we do and we will continue to do.

It's a shame that we didn't have unanimous consent to go forward with the pre-budget consultations, but, having said that, I don't want to repeat all of the reasons that my colleagues have given. I will attempt to go through what type of information was redacted and why.

I am really pleased to address this motion before the committee. As members know, the original motion for production of papers called for:

all briefing notes, memos and emails, including the contribution agreement between the government and the organization, from senior officials prepared for or sent to any Minister regarding the design and creation of the Canada Student Service Grant, as well as any written correspondence and records of other correspondence with We Charity and Me to We from March 2020 be provided to the Committee no later than August 8, 2020; that matters of Cabinet confidence and national security be excluded from the request; and that any redactions necessary, including to protect the privacy of Canadian citizens and permanent residents whose names and personal information may be included in the documents, as well as public servants who have been providing assistance on this matter, be made by the Office of the Law Clerk and Parliamentary Counsel of the House of Commons.

In response to the—

[Pierre Poilievre, Conservative, Carleton, ON]

Hear, hear!

[Annie Koutrakis, Liberal, Vimy, QC]

Thank you.

In response to the motion for production of papers, the government departments retrieved records that responded to the committee's motion. In doing so, and as directed and allowed by the committee's motion, certain information was redacted. In fact, in some instances, information was provided beyond what the motion stipulated. We have mentioned this before, and my colleagues have stressed this point in the past, but I think it merits repeating.

For example, in the case of the Department of Innovation, Science and Economic Development Canada, or ISED, after a thorough search, it retrieved all records from the department that responded to the committee's motion. For that department, for example, this represented fewer than 100 pages of records that were responsive to the motion. Of that, only a small portion were redacted, consistent with the parameters of the motion and the principles and laws set out in the Access to Information Act and Privacy Act.

As is the practice in applying the Access to Information Act and Privacy Act, the goal was to release as much information as possible. In fact, as an example, in ISED's response, only two exemptions and one exclusion were applied.

In the context of the Access to Information Act, an exemption can be explained as a mandatory or discretionary provision under the Access to Information Act or the Privacy Act that authorizes the head of a government institution to refuse the disclosure of information in response to an access or privacy request.

Additionally, in the same context, an exclusion can be explained as being a provision of both the Access to Information Act or Privacy Act that removes certain records from the application of the legislation.

Of the two exemptions used, only one reference was redacted under paragraph 16(2)(c) of the Access to Information Act, which is a discretionary injury test exemption providing protection for information that could reasonably be expected to facilitate the commission of an offence.

Paragraphs (a), (b) and (c) provide examples of the types of information to which this exemption may apply. The examples specify information as follows:

(a) on criminal methods or techniques;

(b) that is technical information relating to weapons or potential weapons; or

(c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.

In ISED's case, the redacted reference detailed ISED's network path, the disclosure of which could reasonably have been expected to facilitate the commission of an offence.

The Government of Canada's network structures consist of vulnerable system aspects that should be safeguarded and not be disclosed in order to prevent providing potential hackers with information that could help them illegally hack Government of Canada systems. I am sure that everybody on the finance committee would agree with that point.

In refusing access to the file path, the public interest was considered, and the possible injury described above outweighed that interest. However, in the public interest, the name of the document was left unredacted in order to remain as transparent as possible while continuing to protect ISED's specific information. All institutions are committed to safeguarding personal information, and the release of the file path could have conceivably led to an unauthorized access of the network. In this instance, information was exempted to prevent such a possible breach and only after careful consideration.

The second exemption used, subsection 19(1) of the Access to Information Act, was applied on less than 1% of ISED's total documents. It is important to understand that the purpose of section 19 of the Access to Information Act is to strike a balance between the right of the public to access information in records under the control of a government institution and the right of each individual to his or her privacy.

Section 19 incorporates, by reference, sections 3 and 8 of the Privacy Act, which are essential for the interpretation and application of this exemption:

When deciding as to whether something constitutes personal information, one must not forget that the intent of subsection 19(1) and its incorporation of section 3 of the Privacy Act is to protect the privacy or identity of individuals who may be mentioned in releasable material. The subject of the two Acts read together is that information must be provided to the public except where it relates to personal information about identifiable individuals.

Although subsection 19(1) of the Access to Information Act is a mandatory exemption based on a class test, it is subject to three exceptions in subsection 19(2) of the act. Subsection 19(2) of the act allows for permissive disclosure in three circumstances. The information may be disclosed if, first, “the individual to whom it relates consents to the disclosure”; second, if “the information is publicly available”; and third, if “the disclosure is in accordance with section 8 of the Privacy Act”.

Also, we have this, in Fontaine versus the RCMP:

...the Federal Court of Appeal commented that the obligation under paragraph 19(2)(a) is, at most, to make reasonable efforts to seek consent of the individuals concerned and that what is reasonable must take into account the practical difficulties that may exist to find and locate the individuals.

It is up to each institution to determine whether it is appropriate to seek consent.

In preparing the records for this committee's consideration, care was taken by ISED, for example, to obtain consent to disclose certain personal information from exempt staff referenced in the material and, in collaboration with other government departments, the staff from WE Charity, in accordance with the provisions of the Privacy Act. The final redaction applied by the department was the exclusion of information that was classified as a confidence of the Queen's Privy Council for Canada. We are all aware of how our government cabinet system works—and I'm quickly finding out, as a new member—and how important and essential it is to keep the collective decision-making process protected by the rule of confidentiality in order to be able to continue to engage in full and frank discussions.

The Access to Information Act in section 69 allows for the exclusion of “Confidences of the Queen's Privy Council for Canada”, which are defined in the act as information contained in six types of documents. The types of records are described as follows:

(a) memoranda the purpose of which is to present proposals or recommendations to Council;

(b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c) agenda of Council or records recording deliberations or decisions of Council;

(d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);

(f) draft legislation; and (g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

The determination of the cabinet confidence is not done by the head of the institution alone. It requires the access to information office within a government institution to consult with its departmental legal services unit “in all instances where information that may qualify” as a confidence of the Queen's Privy Council for Canada “has been identified in response to a request under the act” or, in this case, a motion for the production of papers.

All this was considered, Mr. Chair, and legal services were consulted when the redaction was applied on the confidence of the Queen's Privy Council for Canada.

As members know, “The Committee's motion stipulates that Cabinet confidences and national security information are to be excluded from the package.”

In the case of ISED, “...No information is withheld on the grounds of national security, since the information did not so pertain.”