Procedure and House Affairs Committee on March 16th, 2011

[Pierre Paquette, Bloc, Joliette, QC]

Thank you, Mr. Chairman.

Good morning, Ms. Legault. Good morning as well to your colleagues.

I would like you to provide additional details with respect to the table we see here in Appendix 2. Here on the top line, it talks about “total section 69 complaints registered”. As I understand it, these are complaints that concern Cabinet or the Privy Council.

[Suzanne Legault]

No, not exactly. They are complaints related to cases where the institution is alleging that the information must be excluded because it is a Cabinet confidence.

[Pierre Paquette, Bloc, Joliette, QC]

That's the type of excuse the government gave us not to disclose—

[Suzanne Legault]

It's not just an excuse; it's in the Act. It may be legitimate. It's important to understand that.

[Pierre Paquette, Bloc, Joliette, QC]

On the second line, it refers to complaints as a “percentage of total complaints registered”. In the first column, we see that they represented 4% of the 1,800 complaints that were submitted. At the bottom are “complaints closed”. Does that refer to complaints for which there were no results?

[Suzanne Legault]

When we talk about complaints being closed, that simply means that the investigations are closed.

[Pierre Paquette, Bloc, Joliette, QC]

There was no follow-up?

[Suzanne Legault]

You can see that, in the first column with respect to investigations we completed, we were of the view that in ten of the cases, the information should not be excluded as a Cabinet confidence.

[Pierre Paquette, Bloc, Joliette, QC]

You pointed out earlier that the number of complaints is going down. However, I see that substantiated complaints are increasing in number. You say that ten complaints were deemed to be well-founded last year, so I presume you mean until the end of March, 2011. There may have been fewer complaints, but more of them are substantiated than in the past.

[Suzanne Legault]

As I stated publicly, it is my deep conviction that, under the Access to Information Act, Cabinet confidences should be subject to an exemption, and not an exclusion with the certificate process laid out in section 39 of the Canada Evidence Act. Similarly, the Office of the Commissioner should have the right to review them independently to determine whether they are in fact Cabinet confidences. That is my own position on how the legislation should be structured.

At the end of the notes that provide additional information, I added national and international benchmarking. It shows us that a number of provinces and territories have already provided for this right of review, and that the same applies at the international level. I believe Canada should also move in that direction.

[Pierre Paquette, Bloc, Joliette, QC]

I noted that, in order to issue a certificate, the Clerk of the Privy Council should theoretically answer two questions. When you receive a complaint, do you contact the Clerk of the Privy Council to ask him if he answered the two questions?

[Suzanne Legault]

The questions that are found in the reference document really relate to what came out of the Supreme Court ruling in the Babcock case. Following that ruling, the Office of the Information Commissioner developed a procedure to be followed with institutions, the Secretariat and the Privy Council Office to ensure that we would basically be given the certificate content as determined by the court in the Babcock case. Therefore, the document has to contain basic information such as the name, the title, etc., and the specific provision of the Act that applies to the document. It must also specify whether it is a memorandum or working document, for example. That has to appear on our roll. We carry out our investigation based on that information which, according to the Supreme Court ruling, is the very least that should be provided in order for a certificate to be issued.

It is an administrative practice. However, if there is a major disagreement, I could always say to the government that I must see the documents at some point, and I believe I have the power to do that under the current Act. The government or the Clerk of the Privy Council could then issue a certificate. He would essentially have to follow the process we currently follow. That's why the administrative process was developed. The caselaw is instructive because that is really what the court said. So, the government is required to provide that basic information, including the type of document, the title, the name and the specific provision that applies.

[Pierre Paquette, Bloc, Joliette, QC]

In your document, in reference to the Supreme Court ruling in the case you mentioned, it also says here that “the first element of the Clerk's decision requires that her certificate bring the information within the ambit of the Act. [That refers to what you just stated]. This means that the Clerk or 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 section 39(2) or an analogous category; [...]”

Is that with respect to the person making the request under the Access to Information Act or the Commission? Personally, what I understood in this particular case is that the government has refused to provide its rationale. Therefore, that is contrary to the spirit of the Supreme Court ruling.

[Suzanne Legault]

I tried to explain at the beginning that I obviously cannot provide advice or comment on what occurred in Parliament. That involves parliamentary process and procedures, and Mr. Walsh made that quite clear.

What I am presenting today is the process used by the Office of the Commissioner to determine, through its investigations, whether it accepts the government position when the latter says that certain documents must be protected because they are Cabinet confidences. It's the same thing with respect to the Supreme Court ruling in the Babcock case, which lays out the procedure to follow and rationale that must be provided.

I am presenting that to the committee, in case you may consider it useful in your own proceedings as to the rationale or reasons you should be requesting as part of your parliamentary process. If there is a parallel to be drawn there, I leave that in your hands. That is what I felt able to present to you today.

[The Chair, Conservative, Joe Preston]

Mr. Paquette, you have four seconds left.

[Pierre Paquette, Bloc, Joliette, QC]

I'm going to wrap up.

Mr. Walsh said earlier that there is a difference between the legal domain and that of parliamentary procedure, which is far broader.

In my opinion, the Supreme Court ruling should be a minimum requirement for the government which, on the face of that ruling, should be providing adequate rationale for keeping the information confidential. That has not been done.

[The Chair, Conservative, Joe Preston]

Thank you, Mr. Paquette.

I'll just take your time off Monsieur Godin's. I'm sure he'll care for that.

Monsieur Godin, you're up. Seven minutes.

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

Mr. Chair, you're the one to stop him. I hope I don't lose my time on this.

You said you have the power to investigate to determine whether the documents may be made available or not. Is that correct?

[Suzanne Legault]

Do you mean whether the documents are Cabinet confidences or not? Is that what you mean?

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

Yes, whether they are Cabinet confidences.

[Suzanne Legault]

I understand. That is my position. To my knowledge, it has not been tested.

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

That is your position?

[Suzanne Legault]

Yes.

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

You said there are documents you cannot review.

[Suzanne Legault]

Yes.