Government Operations Committee on Feb. 21st, 2024

[Caroline Maynard]

Again, information that is not proactively disclosed on various government sites is outside my investigative mandate. That is not within my authority. The information is made available voluntarily or is not disclosed under part 2 of the act. Unfortunately, my office does not have the authorization to verify, research or investigate that information.

I strongly encourage people in government to make the information available voluntarily given how clogged the access to information system is. The information should be readily available. Is that happening? You're in the same boat I am. When we do our investigations, we try to find information that is publicly available. That's not always easy. We use the same tools you do when we look for information.

I am here to push for information that is as widely available as possible. It's the same when we investigate a record that was carefully examined. When Canadians see that information is missing or is not readily available, they lose trust in the information they are given.

Certainly, it supports transparency when a website makes comprehensive information readily available to Canadians, to the greatest extent possible.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Whenever I look for information on buyandsell.gc.ca and the Open Government site, it brings to mind an old saying, “divide and conquer”. The information is divided up so that people can't connect the dots. That's a personal observation.

Ms. Maynard, given all the work that your mandate involves, does the government give you the funding you need to ensure the transparency of information, now and in the future?

[Caroline Maynard]

Currently, my office receives enough funding to handle about 4,400 complaints annually. In the past few years, we've received about 8,000 complaints per year. I'm glad to report that the number of complaints dropped this year. For the first time, we've been able to tackle some of the backlog, which had been growing every year.

I definitely do not have the funding I need to keep reducing the backlog and dealing with the complaints we receive every year. The number of complaints varies from year to year, which is why we asked for an independent funding mechanism. Such a model would ensure that my office receives funding commensurate with demand.

Currently, however, we have to submit requests under the federal government's existing system.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Is your office among the government organizations that were asked to reduce their budgets?

[Caroline Maynard]

Fortunately not. My office was spared the budget cuts, because we report to Parliament.

[The Chair, Conservative, Kelly McCauley]

Thanks very much.

Mr. Julian, now we will go to you. My apologies: I had hockey on my mind.

Please go ahead, sir, for six minutes.

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

Thank you, Mr. Chair.

I want to acknowledge that this meeting is taking place on the traditional unceded territory of the Qayqayt and Coast Salish peoples.

Thank you for being with us, Ms. Maynard.

We know that the use of subcontractors has been growing for many years. Under the Harper government, the number of subcontracts doubled. Under the current government, the number of subcontracts quadrupled. That is indicative of a lack of transparency and abuse of the system. We saw it under the Harper government, with the whole scandal over the Phoenix pay system and the engineering and technical support services. Now we are seeing it again, with ArriveCAN, unfortunately.

Given that we've seen this massive increase in contracting out, both under the Conservatives and now under the Liberals, I wanted to ask you, to start.... You did mention that a number of complaints have come in regarding ArriveCAN. I'm wondering to what extent you're receiving complaints about government procurement in general, and particularly in relation to contracting out, and can you also share with us the number of complaints that you have received on ArriveCAN?

[Caroline Maynard]

Specifically about ArriveCAN, I cannot come up with an exact number. I think it's fewer than 20.

In general, contracting with the government is a big issue, and it's definitely something that Canadians want to know about. They are interested in finding out how much money is spent and on what. Other companies are also interested in the information to know who made a submission and who won the bid. We have a lot of requests from other public entities, as well as other private entities.

Generally, contracts should be open. The clauses that are used for contracting should be in the public domain. Very limited information on those contracts should be redacted. In our investigations, we often find that we have to recommend or order the disclosure of information that is not protected under the act.

The exemptions under the act are very specific. You can find them under section 20. The test is very limited, but unfortunately, third parties, contractors and subcontractors often try to not have that information out there in the public domain.

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

Thank you for this.

There are upward of 20 complaints about ArriveCAN. Do you have an estimate of the number of complaints you've received about government procurement in general, particularly on contracting out, which was started massively under the Harper Conservatives and has increased even more under the current government?

[Caroline Maynard]

I don't have those numbers with me, but I can definitely send you a report with the number of requests or complaints we have had with respect to section 20, which is related to contracting.

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

Thank you.

I want to turn to the independent funding model now. We saw a similar situation under the Harper government, which slashed the Auditor General's funding, making it almost impossible for the Auditor General to do their job during that time.

I gather from what you said that your office is underfunded, in addition to having to deal with budget cuts that will make it even harder for you to do your job.

Do you, as an officer of Parliament, genuinely believe that an independent funding model is necessary in order for you to do your job and ensure that all government spending is transparent—something that really matters to Canadians?

[Caroline Maynard]

Officers of Parliament are supposed to be independent of the government. We don't report to the government or a minister. We report to Parliament. That is why I am appearing before the committee today. The only exception to that, as far as my office is concerned, is that our funding model is not independent of the government. I have to submit my requests for funding through the Minister of Justice, who then submits them to the Minister of Finance. The finance minister or the Prime Minister then decides whether to grant the request or not.

My office receives complaints about those departments, and we investigate those complaints. Those very departments are responsible for granting or rejecting my requests for additional funding. In my view, that goes against the independence of my office and the role of an officer of Parliament. I'm not the only one in that boat. You mentioned the Auditor General, and I know the same goes for the Privacy Commissioner.

Other officers of Parliament are fully independent, like the Conflict of Interest and Ethics Commissioner, so independent funding models already exist. I think it's possible to consider implementing a similar model for my office.

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

Thank you very much for this. What you're saying is that you need that independent funding mechanism to avoid having to go through the government to get the funding to do your job effectively.

Thank you for your comments on that.

[The Chair, Conservative, Kelly McCauley]

Thanks. That is your time, Mr. Julian.

We're now going to Mr. Genuis, please, for five minutes.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you very much, Chair.

Ms. Maynard, it seems from your opening comments that you were a bit of a Cassandra here. You prophesied correctly that there would be significant problems around information and said that the pandemic would not be an excuse. The government was warned and it didn't listen.

I think that's important testimony, not only about what happened with the “ArriveScam” scandal but also about how people were warned and flags were raised in advance, and yet there was no appropriate caution shown.

What are the responsibilities of ministers and the PCO, the Prime Minister's department, when it comes to information being maintained and information being available?

[Caroline Maynard]

Under the Access to Information Act, it's the Treasury Board Secretariat that is responsible for administering the act. It is the department that is responsible for sending notifications, policies or explanations on how to apply the act and for making sure that the administration is done properly. However, within each department, the minister is responsible for the administration of its own responses to the Access to Information Act and for making sure that the operation is working, that they have sufficient resources and that they have sufficient people working on it. They are also responsible for sending guidance and directions.

If a leader believes in access and believes in transparency, the rest of the department will work towards that. What we see is that in some departments, it's working really well. They have great leadership and great guidance. With regard to others, I was worried. It's what happened during the pandemic, with people working from home, working on their phones and on Teams and not taking notes, not recording what was happening. Again, I think it is a leadership issue.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

You expect leadership from ministers on that, as well as leadership from the Treasury Board. To be clear, that includes not only on responding to requests for information but also on ensuring that the obligation to maintain records is maintained so that they can be requested. Those are some of the obligations as well.

[Caroline Maynard]

Exactly. Right now, there is no legislative duty to document. There's a policy issued by the Treasury Board with respect to documenting records and keeping records, and there are also information management policies. However, with the perspective that the Treasury Board Secretariat is definitely responsible for administering the act, this has to come down from the ministers in the different departments.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Clearly that's not happening. Thank you for that.

It has been alleged—there have been articles about this—that Minh Doan deleted email records. Can you confirm, first of all, that deleting email records, as described in this story, would be a violation of the law? Second, do you have any response or reflections on these very serious allegations against one of the principal players in the ArriveCAN issue?

[Caroline Maynard]

I cannot comment on that specific situation, but I can tell you that the act currently, under section 67.1, says that it prohibits destroying, altering, falsifying or concealing records with the intent of denying “a right of access”. During an investigation, if we find that documents have been destroyed and I have sufficient evidence to believe that it was intentional in order for that information to not be accessible, I can refer the file to the Attorney General for further investigation under the Criminal Code. However, it's not something that I can pursue. When an administrative investigation becomes a criminal investigation, I am limited.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I want to understand that process that you just described.

You can't comment on the specifics around the allegations against Minh Doan, but if you had these concerns, you would refer them to the Attorney General, Mr. Virani, who sits in the Liberal cabinet. Could you refer them directly to the RCMP? If you were making such a referral, would the public know that you had made that referral, or would it be a private referral?

[Caroline Maynard]

Currently, you're right that I can only refer it to the Attorney General. Unfortunately, I cannot refer it directly to the RCMP. It is something that I submitted to the TBS as possible amendments to the act—that I should be able to refer things to the appropriate authorities.

Right now it is the Attorney General, and it is not something that's private. This is something that we know we have done six times in the last 40 years of our existence. It's not something that happens very often, because you have to believe that there was an intention to remove access to the information.

[The Chair, Conservative, Kelly McCauley]

Thank you very much.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I would just comment parenthetically that—

[The Chair, Conservative, Kelly McCauley]

That's our time.