Evidence of meeting #46 for Health in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.
A recording is available from Parliament.
Law Clerk and Parliamentary Counsel, House of Commons
Well, I was not able to vet them fully because they already are redacted. They are redacted on the grounds in the Access to Information Act, which are different from the grounds in the order.
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you.
Madam Maynard, on June 15, the Office of the Information Commissioner released its 2021 annual report, which documented, to quote your words, “a culture of complacency” within the federal government. I'm going to quote from that:
This culture of complacency is characterized by the view that responding to access requests is a distraction from employees' day jobs, rather than what it actually is: a core part of their responsibility as public servants—to facilitate transparency in government operations.
Madam Maynard, is it your view that this is a fair characterization of the attitude towards disclosure in the current government?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
I'm talking about the public servants' jobs, how it's their responsibility. It is our leaders who need to make sure they understand that it's their responsibility to participate in the full process.
Like I said earlier, people have 30 days to respond to access requests. In that 30 days, they have to process that information, they have to find it, they have to redact it, and they have to disclose it. If the person who has the information in their office refuses to give it to the ATIP office, that will definitely lead to delay, which we've seen in the last six years. Response times keep going up.
NDP
Don Davies NDP Vancouver Kingsway, BC
Are you saying that in the last six years, since 2015, the time it takes for the government to respond to access to information has lengthened? Is that your finding?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
Well, what I was going to say is that in the last six years, the number of access requests has increased by 225%, but the units responding to those access requests have not increased in proportion to the number of requests. Definitely we have seen more and more delays and more and more time spent.
NDP
Don Davies NDP Vancouver Kingsway, BC
Back to you, Mr. Dufresne. Let's compare apples to apples. Approximately how many pages has the government disclosed to you, pursuant to the order of October 26, 2020?
Law Clerk and Parliamentary Counsel, House of Commons
We've received, as I indicated earlier, about 8,500 documents. I don't have the breakdown in terms of the number of pages. I will try to get that and provide that to you as soon as possible.
NDP
Don Davies NDP Vancouver Kingsway, BC
Okay.
On November 27, the Clerk of the Privy Council, Mr. Shugart, wrote to this committee with respect to that document production order. He said this, “Preliminary estimates suggest that there are millions of pages of relevant documents.” By the way, I think that later on he clarified that there were millions of documents as well, but that's where the confusion comes in. Certainly in that letter he talked about millions of pages of relevant documents. Would you agree with me, sir, that in seven months the government has turned over a small fraction of the millions of pages of relevant documents that the government claimed in writing it had in its possession?
Law Clerk and Parliamentary Counsel, House of Commons
I would agree that we've certainly received much less than what was expected.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. Davies.
We go now back to Ms. O'Connell.
Ms. O'Connell, please go ahead for five minutes.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Thank you, Mr. Chair.
Thank you, Mr. Dufresne.
Again, I feel like we're going in circles.
Mr. Davies, rest assured that I fully know it's not Sunday. I simply understand the game and the coalition by the Conservatives and the NDP in this attempt to rewrite motions and reposition the House's ultimate decision.
Mr. Dufresne, I appreciate that you continue to repeat that ultimately it is up to the House or the committee to determine the procedure of motions. I hear you on that, and again, I feel for you in that I think the opposition is trying to have you say something otherwise and take away their responsibility from having to do the work and rectify their own kind of mistakes in their motion.
I want to get back, because I can't seem to get off this point about the two motions. Mr. Davies continually refers somehow to that again, referring to vaccine contracts, that somehow these documents did not comply with the House motion. However, as we've stated, it indicates very clearly that there is no section within the October House motion that refers to vaccine contracts. The first time that shows up is in the Barlow motion of February 5, and in that motion, it says—again, I already read into the record—that:
If the law clerk does not have such documents...
We've already been down the road in terms of why you wouldn't. It's because it was never required in the original October motion. Then it continues:
...that the committee request from the government the contracts for seven vaccine agreements with suppliers be tabled with the committee...
in both official languages.
Was that done, to your knowledge, Mr. Dufresne?
Law Clerk and Parliamentary Counsel, House of Commons
To my knowledge, that was done, yes.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Okay.
Then it says:
...that the documents be vetted in accordance with the parameters set out in the house motion...
Now, this is the question, because these documents are not referred to in the House motion. Would it be fair to say, because you mentioned also that they were done in the [Technical difficulty—Editor] of the access to information?
If the government is handed a poorly written motion that doesn't.... It talks about the parameters in the House motion, but the House motion doesn't refer to these documents. Is it not a reasonable thing that the government would then turn to the Access to Information Act, which is a standard they would use in terms of the vetting process?
I don't know if Ms. Maynard would like to answer that, or Mr. Dufresne, but, if the motion is inaccurate, is it not reasonable that the government would then use the parameters in legislation that is commonly used for the vetting of documents?
Law Clerk and Parliamentary Counsel, House of Commons
My view is the committee could do that if it so stated in its decision. In my view, the committee decides, and ultimately the House decides what grounds it will accept.
In this instance, the House has agreed to certain grounds in the order. The motion talks about vetting in accordance with the parameters set out in the motion, so it appears to relate to those parameters, which would be the personal privacy, national security and the commercial matters.
Ultimately, that's for this committee to decide.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Right, but the government has indicated that that's precisely what they did. There was no requirement, given the Barlow motion on February 5. There was no requirement for them to provide those documents to you, or else the third paragraph wouldn't exist at all.
If they followed the parameters of the House motion, then they've met the terms of the motion. Would you say that it's fair to say that there's nothing in this motion that says, basically, that there's an arbiter of the parameters? The parameters are set in the House motion. This clearly sets out that you don't have to receive them in advance, or else why would there be a clause taking that into account?
If the government says they did the proper redactions based on that, then they've complied with the motion.
Law Clerk and Parliamentary Counsel, House of Commons
I understand the proposition you're putting forward. I think ultimately it's for the committee to decide whether that's the interpretation it will take. From my office's standpoint, I am vetting the documents that I received on the basis of the language in the House order.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
Then these documents are being vetted in accordance with the Barlow motion.
Thank you.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Ms. O'Connell.
We continue with Mr. Lemire.
Mr. Lemire, the floor is yours for two and a half minutes.
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
Thank you, Mr. Chair.
My question is for Mr. Dufresne.
Since the committee cannot impose sanctions for a failure to comply with its orders, and only the House of Commons has the power to reprimand, you say that the committee has three options.
The first is to accept the changes as proposed. That would make no sense here, because this is still an issue of transparency and public interest. It is regrettable that the government does not understand that.
The second option is that an acceptable compromise could be considered. What is your advice to us in that case? What could we do to finally obtain a transparent answer from the government?
Law Clerk and Parliamentary Counsel, House of Commons
In the letter in which I asked for instructions, the main issue I pointed out to the committee was the translation. The government decided that it should be done by the Office of the Law Clerk and Parliamentary Counsel, and, if necessary, by asking for resources from the Board of Internal Economy. I indicated that, in our view, that obligation lies with the government.
I asked for those instructions in the event that, under the circumstances, the committee tasked us with doing it. However, we are no longer doing it, given that the responsibility does lie with the government. In that regard, instructions could be prepared.
In terms of the disclosure, if the committee is not satisfied with the way in which the disclosures are made or with the reasons suggested for doing the redactions, the committee can report that to the House.
The committee cannot amend the order of the House because only the House can do so. But the committee can report on its satisfaction or dissatisfaction as to the way in which matters are proceeding.
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
In a letter you sent to the Standing Committee on Finance, you mentioned that Parliament's power to order the production of documents is absolute.
Under the Constitution, no act can preclude that, not even the Privacy Act, to which Parliament is not subject. The only limits on Parliament's power to order the production of documents is the common sense of parliamentarians, who must consider the public interest in their requests.
In that context, would the $9 billion spent to buy vaccines not be a matter of public interest, especially when we know that our country probably paid a lot more than others?
Considering the public interest, how could we frame a request for access to that information?
Did we pay too much for our doses, especially last December? How much did we pay for Justin Trudeau's marketing campaign on the 249,000 doses, just to stay up with other countries, even though we knew very well that we were way behind?
Law Clerk and Parliamentary Counsel, House of Commons
In terms of the committees' approach, you will always be asked about the topic of your study, your mandate, why is it important and in the public interest to have and report that information, in order to be able to hold the government to account.
Then, there may be questions about the reasons put forward. Either the government, or a private company or an individual may have good and acceptable reasons to justify confidentiality. However, sometimes, there are also options. For example, one option could be to require that the information be seen by parliamentarians in camera, or that it would not be explicitly mentioned in a report, but that parliamentarians could have access to it.
For the Afghan files, a committee was set up. People had the security clearance and there were arbiters.
So there are options, and my advice has always been that those considerations not be overlooked when they are reflected in the legislation or when they are in the public interest, because that is important. However, the House has the final word in terms of its procedures, just as courts have the final word when members of the public come before them.
Liberal
The Chair Liberal Ron McKinnon
Thank you.
Thank you, Mr. Lemire.
We'll now go back to Mr. Davies.
Mr. Davies, go ahead, for two and a half minutes.
NDP
Don Davies NDP Vancouver Kingsway, BC
Mr. Dufresne, I'll go back to Mr. Barlow's motion to get the vaccine contracts to this committee. It says:
If the law clerk does not have such documents, that the committee request from the government the contracts for Canada’s seven vaccine agreements....
Sir, can you tell the committee whether there is any reason for you to have the vaccine contracts, other than the October 26, 2020, motion of the House?