Procedure and House Affairs Committee on March 16th, 2011

[Yvon Godin, NDP, Acadie—Bathurst, NB]

You said a little while ago that a decision can only be as good as the information it's based on. Right? Now we have some information and we don't get it. Could we vote that it's a contempt of the House and a breach of privilege to the members?

[Rob Walsh]

You can vote on anything you may choose to vote on, I suppose. The question is whether that's the appropriate route to take when the information you're seeking pertains to a particular bill before the House. One might suggest you vote against the legislation.

On the other hand, you may vote against the legislation and still think your privileges are being breached, and you still may want to pursue the privilege point because there's a principle here. What you want to do is move this matter, I suppose, to the point where the House affirms its rights. Whether the House takes any further steps beyond that, that's another matter for the House to consider.

[The Chair, Conservative, Joe Preston]

Monsieur Proulx, for two minutes, and then Mr. Lukiwski.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chairman.

Good morning, Mr. Walsh. Mr. McGuinty pointed out earlier that this is the first time in the history of the Commonwealth that this situation has presented itself. However, the Conservative government has described this, and I will use its actual words, as a “distraction” and a “game”.

We see this as a very serious matter. This is completely irregular. As senior parliamentary counsel—I don't want to harp on your 20 years of service, although I understand that you began your career immediately after kindergarten—but seriously, do you think it's appropriate to use words like “distraction” and “game” in this kind of situation? Do you not think Canadians have a right to be concerned about this?

[Rob Walsh]

There is another principle in the parliamentary domain which you are well acquainted with, I believe, and that is the freedom to say things in debate, according to what is necessary and as one sees fit. I am not in a position to comment on the words used in parliamentary debate.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Are you telling me that you think it is a game? Do you agree that it's a game or a distraction? I don't think so.

[Rob Walsh]

I'm talking about parliamentary principles here. My role is not to judge under what circumstances these principles should apply or anything else of that nature. I am only commenting on the principles. I hope I am making myself clear as regards the principles involved in this affair; however, when it comes to the way they should apply, that is a decision for you to make as members of this committee.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

So, we agree that it is a very serious matter.

[The Chair, Conservative, Joe Preston]

Thank you, Monsieur Proulx.

[Rob Walsh]

I believe your comment is relevant, but Mr. Lukiwski may also make a relevant comment. I'm waiting to hear it.

[The Chair, Conservative, Joe Preston]

Mr. Lukiwski, for two minutes, and that should finish us up.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I know the opposition members are waiting with bated breath for those comments.

Mr. Walsh, thank you for being here. I want to go back to something you said before, which is very, very true, which is that it is the committee's responsibility to determine whether or not privilege has been breached.

It would appear to me that the germane questions to be asked are very simple. They are questions for the ministers who will be appearing before us later today in that they supplied information, the government supplied information, to Parliament, and the Speaker felt the information was not sufficient. It would appear to me that the questions would be best put to the ministers to get their explanation as to why the information they supplied was, in their view, sufficient.

The troubling part is before we've even heard testimony from the ministers, I read in media reports, particularly the Hill Times, that Mr. Proulx has been suggesting that the opposition, at least from the Liberal perspective, may be going down a track to finding contempt in the government on this issue before any testimony has been given. I don't know if you have a comment on that.

We've talked about the tyranny of the majority, but it would appear to me that if that is an attitudinal approach of opposition members, and you mentioned before if the opposition is united in their opposition to the government—which is a nice way of saying coalition—really, these committees serve no useful purpose. The testimony serves no useful purpose.

If the united opposition is predisposed before coming to committee that they will find a ruling of contempt or make a motion of contempt on the government, what are we doing here?

[The Chair, Conservative, Joe Preston]

A very quick answer.

[Rob Walsh]

I heard that question asked many times by members in committee sitting on the opposition side during the years when there was a majority government. It happens that way: too bad, so sad, you don't have the numbers; the government shows up at committee having decided its view on an issue and that view prevails. It's difficult and frustrating for members in the minority. It's just a fact of the numbers.

[The Chair, Conservative, Joe Preston]

Thank you very much, Mr. Walsh.

Thank you, all members, for making this roll along very well today.

We're going to suspend for a few minutes while we excuse Mr. Walsh and have another witness come in and help us with our study.

[The Chair, Conservative, Joe Preston]

We'll call the meeting back to order. We'll try to keep our breaks in between as short as possible so that we can keep on our schedule for today. It is full. There's lots of information the members around the table will want.

Ms. Legault, it's great to have you here today. If you have a short opening statement, I'll take it. Please introduce your guests that are here with you, too. Then we'll go to questions from members.

Please, the floor is yours.

[Suzanne Legault, Information Commissioner, Office of the Information Commissioner of Canada]

Thank you, Mr. Chair.

Good morning, everyone.

Mr. Chair, I do not have prepared speaking notes for the committee this morning, but what we have now distributed to the members is actually a detailed backgrounder in terms of how cabinet confidences are considered by my office, and some of the relevant case law in relation to cabinet confidences and certification of cabinet confidences by the Clerk of the Privy Council.

With me today I have Andrea Neill, who is the assistant commissioner. She's responsible for investigations. She's here because if any of the members have questions in terms of how we look at cabinet confidences, when an institution claims that there's a cabinet confidence inclusion that applies to specific documents, Andrea is responsible for the investigative process and she can walk us through that.

Emily McCarthy is my new general counsel. I'm very pleased to have her as a recent addition to the office. Also, Emily can answer more specific questions about the relevant case law I'll alert the committee members to.

I think it's important to mention right at the outset that the entire parliamentary process, and all the discussions that occur in Parliament regarding requests for information made to the government, are really part of a separate and distinct process from the one we use for access to information. It is important that this be well understood.

That said, before coming here today, I re-read the debates that took place in the House of Commons with respect to this matter, and I am here to give you some ideas as to the rationale we ask the government to provide when it invokes Cabinet secrecy, how that works and how this is interpreted in the caselaw. You may find some interesting parallels that could apply to your own discussions and subsequent proceedings.

I would also like to mention that it would be completely inappropriate for me, in my current role, to make a specific determination regarding a specific request. We conduct our inquiries independently and in private, and I have to secure all the documents and review all the representations from the parties before taking a position.

It's very important to understand that I cannot and will not comment on a specific request for information without having gone through the process the legislation asks me to do, which is to conduct a fair and thorough investigation, review all the documents, get all the representations from the parties, and then make recommendations based on findings.

One thing people have questions about is what is a cabinet confidence. It's a very good question.

A description of cabinet confidence can be found in section 69 of the Access to Information Act. Certain documents are listed there as being cabinet confidences; however, the list is not exhaustive. There's a similar provision in section 39 of the Canada Evidence Act, which has a similar list of documents. However, the section 39 process in the Canada Evidence Act requires the Clerk of the Privy Council or a minister of the crown to issue a certificate certifying that these are cabinet confidences. We'll talk a bit about the case law that surrounds that. Ultimately, by way of policy, it is really the Privy Council Office that decides what is a cabinet confidence.

There are a couple of cases that I think are really relevant to the discussion around what is a cabinet confidence and how one ensures it's a cabinet confidence. There is the case of Babcock v. Canada, which was decided by the Supreme Court of Canada. Everything I'm talking about is actually in the paper. In that case the Supreme Court of Canada decided that it has the right to review the decision by the Clerk of the Privy Council to issue a certificate and it lists the criteria that must be looked at to determine whether the certificate was validly issued under the circumstances.

One of the things the court said is that this means the clerk or the minister must provide a description of the information sufficient to establish on its face that the information is a cabinet confidence and that it falls within the categories of subsection 39(2) or an analogous category. Those categories are the same as the ones in the Access to Information Act under section 69. It goes on to say that the kind of description that's required for claims of solicitor-client privilege under the civil rules of court will generally suffice, i.e., the date, the title, the author, and the recipient of the document containing the information should normally be disclosed.

This gives the framework under which we conduct our investigations regarding cabinet confidences. If an institution claims cabinet confidence, the way we conduct our investigation is we seek all the records. The institution will then say that the records are not covered and cannot be disclosed because they're covered by cabinet confidence. Then it will issue a schedule listing all of these details. It's reviewed by the Privy Council Office. Our investigation consists of reviewing the schedule and ensuring that we are satisfied the test that was mentioned in Babcock has been met.

I gave you the statistics, but it's important to understand that in our investigations in the last five years, even though we don't have the right to see the actual documents, on average, in 24% of the cases we investigated, we found that the case had merit, i.e., they were documents where cabinet confidences were claimed and they were not met.

If you look at the table of statistics in the documents, it's important to understand it is a small percentage of our complaints. We're dealing with small numbers, but nonetheless, I think it's instructive to understand what the situation is vis-à-vis our investigations.

With that, Mr. Chair, and given that I have given the committee all the background information, I'll leave it at that.

The only thing I can offer to this committee is a parallel in terms of the process that we follow in order to determine, with government institutions, whether a matter is a cabinet confidence and the justifications that we require of the Privy Council Office in conducting our investigations.

[The Chair, Conservative, Joe Preston]

We will start with Monsieur Proulx, knowing that Madame Legault will have to sometimes talk about procedure rather than actual cases.

Monsieur Proulx, for seven minutes.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chairman.

Good morning, Ms. Legault. Good morning, ladies. Thank you all for being here this morning.

Ms. Legault, we read recently that you had to or were going to have to carry out investigations in three or four different departments or institutions. The RCMP may get involved and there could be charges. What normally prompts you to carry out that kind of investigation? Is it because of abuse? Is it because you have received complaints? Is it because you are not satisfied with the explanations given by certain individuals in the course of your discussions? What prompts you to carry out this type of investigation? There must be something that triggers it.

[Suzanne Legault]

It's very clear in the Act: my primary mandate is really to carry out investigations when I receive complaints about the handling of access to information requests by federal institutions covered under the legislation. We receive approximately 1,800 complaints each year in the last two years, and possibly more over the last five years. The legislation requires that I investigate. So, I have no discretion, in that the Act is very clear: when I receive a complaint about an institution covered under the legislation, I have to investigate.

I must, I shall, investigate.

The law says I have to do it.

Second of all, I also have the option of carrying out my own investigations. To be perfectly honest, I very rarely do it because we still have some 1,900 active files in our inventory. Because we also receive approximately 1,800 per year, I really focus on the complaints we receive. However, I have conducted several investigations in relation to complaints since becoming acting, and then permanent, Commissioner. I did do a number of investigations. I don't have the exact number with me, but I would be pleased to share that information with you.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

In order for you to take the initiative of carrying out an investigation, I imagine the cases must deal with specific situations or involve blatant abuse.

I'd like to come back to the topic of discussion today, if you don't mind. You recently stated in a newspaper article that you should be in a position to review the documents in order to determine whether or not they are Cabinet confidences. Has your office noted an increase in the number of complaints with respect to cases where Cabinet secrecy was invoked to censure access to information requests?

[Suzanne Legault]

No, and I have provided you with those documents. In fact, over the last year, the total number of complaints dropped by 1%. It has fluctuated between 1% and 4% in the last five years and it is declining. In the documents I distributed to you, you will see a graph indicating, in relation to total requests handled throughout the system, how many times institutions claimed documents to be Cabinet confidences. Those are government statistics. You can see that the number dropped over the last year.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Yes, except that it's for a five-year period and it was high in 2008-2009.

[Suzanne Legault]

Yes, and I can tell you anecdotally, even though I don't have the specific data, that Andrea and myself noticed, when we looked at this year's complaints, that a number of complainants tell institutions they want to consult certain documents, but not those subject to Cabinet confidentiality. The issue is the timeline involved for receiving the information. That is documented in last year's report. For the Privy Council, there are very lengthy timelines involved for the handling of Cabinet confidences.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Have the timelines increased? You seem to be saying that they are very lengthy.