Transport Committee on June 6th, 2007

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

That's my point.

I'll come back to you, Mr. Chair.

Essentially all we're doing is opening a restricted door on another method by which this information could come under fairly restrictive circumstances to the public. My point is that this amendment is needed so that we do have that door. There are very limited possibilities on the information coming out. We can't expect the public to go to court, we can't put it all in the minister's hands, so we need to have a third alternative. That's what the amendment NDP-8.3 endeavours to do, open a third door--even though it's, I'll admit, far short of what many witnesses actually directed us to do or suggested to us that we should be doing.

[The Chair, Conservative, Merv Tweed]

Monsieur Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

According to Mr. Reinhardt's last comment, information accessibility is already provided for in the act, but we have an enactment that states that it is confidential, except in three cases. In those circumstances, if there is an enumeration but no reference is made to the applicable acts, as is the case in the amendment, I think it is difficult for the Access to Information Act to apply.

[Franz Reinhardt]

The act from which Ms. Stanfield read some excerpts is the Access to Information Act. Section 20 concerns the test that must be applied before the information is made accessible. It refers to

trade secrets of a third party, on parle de proprietary rights--

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Even if another act states that the information is confidential, the Access to Information Act takes precedence?

[Franz Reinhardt]

Yes. The Access to Information Act takes precedence over every other Canadian act. However, in the context of one of the amendments, we asked that the cases in which the information is protected be reflected in Schedule II of the Access to Information Act, specifically so that the information is not disclosed.

As I explained at length on Monday—and I thought it was clear at that time—without this protection, companies will not allow people to make internal reports or the information to be used to improve safety. We will completely lose that source of information.

The information that Mr. Julian wants to obtain is already available; nothing has changed. As regards the present situation concerning access to information in the case of audits, nothing has changed either. Here we're talking about internal information in the context of the SMSs only. We are not protecting it; we are losing it.

[The Chair, Conservative, Merv Tweed]

Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

You've convinced me that this situation should apply only to audits. However, when I do research on audits, and I hear statements such as Mr. Ranger's or information such as that provided by Mr. Julian, I have reservations. Some reports are not available. That's what has to be settled.

If you don't do anything else, I'm going to be forced, for lack of anything better, to side with Mr. Julian—pardon me for this comment, Peter—whose amendment states:

(d) the information is required to be disclosed under an Act of Parliament.

Information that must not be disclosed pursuant to a federal act will not be disclosed. That is not what I would have liked. I would have liked a provision to state that audits will be made public and that that is consistent with the Access to Information Act. That would suit me completely. The problem is that I am not convinced. That is why I support Mr. Julian's amendment, even though I would have liked us to arrive at something clearer.

[Merlin Preuss]

The way you described that, I think, speaks to the fact that the ATIP regulations and laws are there. And now that I've had a chance to look at this one from Mr. Thompson, there's nothing we're doing in this bill that impacts on this at all.

Five years ago the same result would have happened to that particular report. Tomorrow the same thing will happen, if you pass these amendments to the bill. It really is not connected to what we're trying to do here. In fact, with respect, what Mr. Julian is proposing would not change what happens here one bit. It doesn't touch this. It's separate. It may be an issue, but it's separate from what the amendments are trying to do.

I understand what you're saying, but what we're saying is that ATIP is already there. If ATIP isn't strong enough, what we're doing here, in my opinion, isn't doing anything.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I agree with you. For lack of anything better, I must make that decision.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Merv Tweed]

Again, with the same group of numbers that we stood the last time, we're at NDP-9, page 45. It was stood at that time.

Mr. Julian, you need to move it.

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

Thank you, Mr. Chair.

We have within this section exemptions of information that we've just spoken about.

How the proposed legislation reads currently is:

(2) Information disclosed under a process referred to in subsection (1)

--in other words, the SMS process--

may not be used in the taking of any measure, or in any proceedings, against the document holder or the employee who disclosed it for a contravention of this Act or of an instrument made under this Act.

Amendment NDP-9 simply takes out “the document holder”. So it would continue to protect the employee, and we certainly heard some consistency from witnesses about protecting the employee. I think there was broad agreement on that. We have to have some protection for the employee so that in these incidents, which lead to accidents, as Justice Moshansky said so clearly, the person is protected.

I do not believe the document holder should get what is essentially a get-out-of-jail-free card and that the document holder should have that same ability, essentially, to be protected.

What I hope would happen, Mr. Chair, if we adopt this amendment is that the government might then choose to bring back amendments next Monday that revise the status of the document holder. That's fair game. They may choose to do that. But very clearly, we cannot have the get-out-of-jail protection we have for employees extended to the document holders themselves. It doesn't make sense. It certainly puts all of us in a precarious position, as parliamentarians, to give this exemption from their responsibility, because essentially what that means is that if the process is respected, as we've already seen, the measures taken are fairly long and arduous. And we saw with rail safety that that kind of situation isn't in the interests of the Canadian public.

The amendment endeavours to take “the document holder” out. The government could then choose to move another amendment on Monday. I'm sure they would have time over the next few days to do that. But we have to have some protection so that when companies go bad, as they sometimes do--and we've certainly heard testimony to that effect--they don't get a get-out-of-jail-free card.

[The Chair, Conservative, Merv Tweed]

Is there any comment?

Go ahead, Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I'm in favour of the amendment because it's sole effect is to add, at line 21, the words “ings, against the”. The word “against” is added.

We are talking about amendment NDP-9? I think that's simply an acceptable technicality.

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

We're deleting the words “the document holder”. That's substantial.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

The idea is not to protect the company.

[The Chair, Conservative, Merv Tweed]

Mr. Julian.

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

I'd like to clarify something, Mr. Chairman.

The effect will essentially be to separate the treatment of the employee from that of the document holder. That's nevertheless substantial and important. It is a principle. Concerning the information that they provide in the context of the process, employees are protected, but protecting companies against evidence provided in that process makes no sense. This is a situation where the company may be irresponsible. If it is sheltered—

[Robert Carrier, Bloc, Alfred-Pellan, QC]

—from disciplinary measures—

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

—and proceedings instituted against it, that makes no sense.

[The Chair, Conservative, Merv Tweed]

Mr. Reinhardt, do you have a comment? No?

[Franz Reinhardt]

I do have a comment.

I think that in safety culture--we're talking SMS again--if I'm an employee working for a document holder that is governed by an SMS, and I know that reporting internally will result in problems and charges against my employer, I will never report internally. And this is exactly what we're trying to avoid. We're talking about people coming forward with information and bringing them to the employer so they find a common solution and corrective measures under SMS. This is information that Transport doesn't even have.

So Transport doesn't have the information. When we go to review systems, if we see those things, we're not going to use them against either the employee or the employer, and it's not releasable under access to information. This is the safety culture that is required. Otherwise, even if you give protection to the employee, but he knows that his company is not protected for internal reporting, he'll never use it.

We built in enough protection with the whistle-blower one under amendment G-3, you'll see. There is enough protection there. But the employer needs to be protected there as well as the employee in a safety culture.

[The Chair, Conservative, Merv Tweed]

Mr. Julian.

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

I'll quickly remark on this.

We've seen with rail safety how SMS should not be implemented. To allow that get-out-of-jail-free card is a completely wrong-headed attempt to implement SMS. We've gone through the rail safety inquiry. We've seen the problems that occur. For this committee to then say, but that's okay, they get a get-out-of-jail-free card, means essentially that the evidence acquired through SMS can't be used against the companies. If a company is irresponsible, and some of them will be, then that evidence through this clause can't be used against them. We're now faced with Transport Canada, after the fact, after a death or injury that may occur, trying to find evidence through other means to try to prosecute a company, if they can even do so. It absolutely makes no sense.

The government has the opportunity to redraft and resubmit amendments that are certainly more prudent and careful. This committee can allow them to do that by adopting this motion. This amendment will then lead to the government presenting what will be, I believe, a more responsible amendment, separating what the responsibilities are for the companies and what the possible ramifications are for being irresponsible.

[The Chair, Conservative, Merv Tweed]

Mr. Bell.