:
Obviously I was not at the subcommittee, and from a procedural point of view I have two issues. I have no issue with seeing the individuals who are listed on today's agenda. That's certainly appropriate.
There are two things. One, I want to see—and I want to know if they're on the list, since we're talking about what we're doing on this Afghanistan report—the Information Commissioner and the person from the Department of Foreign Affairs who's mentioned here. I would like to see them separately, not with other panellists, and I'd like to see them first. I think it's appropriate, from a procedural point of view, that we get the rules and the regulations and the process piece and then we invite the other individuals who've been involved in the issue to come. That way, as a committee, we would understand the legal ramifications, the process piece. From a process point of view, I think we should hear from our government officials first, as we do in all the other committees I've been on. The government comes first on whatever the topic happens to be, if they're involved, and they are definitely involved on this one.
So the government officials, the parliamentary officials first. Then we ask the other folks to come. That's one.
Then second, Mr. Chair, to be fair to the government officials, whether it's the Information Commissioner or Ms. Sabourin, is that they be on a separate panel from the other people who've been involved in the issue, from a newspaper point of view or whatever. I'm sorry we're doing this in public, but I want to know what the discussion was at the committee, if that's possible—and that is possible from a procedural point of view—and whether that was discussed. Since we're dealing with a report, I don't know from a committee point of view what I need to do to at least put that on the table.
I am not going to give you a reading of the transcript of the subcommittee report, because you had a representative of your party there who can brief you.
However—I'll also answer your question—I will tell you that the subcommittee considered this from the access to information point of view. We thought it would be best to begin at the beginning, and therefore we thought we would ask the two people who made the access to information requests of the Department of Foreign Affairs to appear first so they could tell us what they did, when they did it, what response they got, how they got it. We thought it would then be appropriate to call the official from the Department of Foreign Affairs who is responsible for answering access to information requests. That's Madame Sabourin.
So that, we thought, would be the logical way of proceeding, to start with the people who made the access to information requests, find out what they asked for and what they were told, and then find out from the departmental official who was responsible, what the department's response was, how, etc.
With due respect, I don't consider the Information Commissioner to be a government official. He is a person who reports to Parliament. And we did discuss the Information Commissioner. I believe he's on the list to be a witness. We also discussed what we thought he might or might not say. We invited suggested witnesses from all parties, and there were people at the steering committee who made some suggestions, but that does not preclude other people from making other suggestions.
The Department of Foreign Affairs has advised the committee that Madame Sabourin will be available to the committee the week after the break. So she will be here on Tuesday, assuming we proceed with this report in whatever fashion we have to proceed with it.
If you want to proceed in a different way from what this motion sets out, then you have to suggest an amendment to the motion.
I'm going to recognize Madame Lavallée.
:
Mr. Chair, the majority of committee members voted in favour of the motion to immediately begin an inquiry into the way that the rights of various individuals were treated under the Access to Information Act with regard to the Department of Foreign Affairs and International Trade's internal report. The motion was passed, and it is our duty to begin this inquiry in all haste.
Is it not true that this motion is good for us? If it is good for the Bloc Québécois, the Liberal Party and the NDP, it is also good for the Conservative Party.
I want to remind our Conservative friends of an editorial that appeared on Saturday in the Globe and Mail. It is not the Bloc Québécois, the Liberals or the NDP saying so, but rather the Globe and Mail. The article refers to the speech that Mr. Wallace made in the committee during his apparent filibuster. It also states that, as soon as a journalist arrived in the room, Mr. Tilson called for the vote.
You may laugh, Mr. Wallace, but it is not funny. It is not funny for democracy.
I want to quote from the article:
Mr. Wallace, and any who encouraged him in his filibuster, could use a refresher course on the realities of minority government.
I am not the one saying this, it is the Globe and Mail, and it also gives a little lesson on the nature of a minority government. The editorial concludes as follows:
The concern is that the Conservatives have got into the habit of using procedural tricks to block vexing hearings. The Conservative government has embraced the notion of accountability in principle. It should encourage its MPs to respect it in practice.
I would remind the Conservatives that this motion was passed by the majority. I would officially and solemnly ask them to quit resorting to procedural tricks so that we may immediately proceed with the inquiry on the Department of Foreign Affairs and International Trade's internal report, which was subject to a request under the Access to Information Act.
:
I would only say, Mr. Speaker, that we don't owe Mr. Wallace.... We have no obligation to go through everything we went through in the planning committee for his behalf. He was represented there. Mr. Tilson was there at the committee. I don't think that's telling stories out of school, even though it was an in camera meeting. Mr. Tilson participated fully and made their points very well as to why he didn't want this particular meeting to go ahead.
Not all committees have planning subcommittees, and in those that don't choose to have a planning subcommittee, then the planning is done in camera in the committee as a whole. For those that do, for streamlining and efficient use of our time, the planning committee is done in camera. The debate on the motion coming out of that planning committee is open to the public, and that's what we're doing today.
But we're going to cry foul if we sense that the Conservatives are throwing obstacles in the way of this investigation. We have the witnesses here. The public wants to know. Public opinion is seized of this issue, and if there's anything more than a simple summary comment from Mr. Wallace, we should publicly state in this public meeting that the Conservatives are deliberately blocking this important investigation and this important study. The shame will be on them, and the public will be well aware of it.
:
Thank you, Mr. Chairman.
I want to correct something Mr. Martin said. It's unfair of him to say I didn't want this meeting to go ahead, this particular investigation. That's completely unfair.
If I gave him that impression, he's mistaken, because it's quite the contrary. The majority has ruled this process will proceed, and we'll proceed. We abide by the majority of this committee.
The point I made at the subcommittee, since it appears that everything at the subcommittee is now going to be revealed, my position then and my position now—if you read the motion: “That, if possible, the Committee begin on Thursday, May 17, 2007, its study of the Department of Foreign Affairs internal report “Afghanistan 2006: Good Governance, Democratic Development and Human Rights” in relation to Access to Information requests for the document.”
As far as the witnesses who are here today are concerned, I'm pleased they're here and I look forward to hearing what they have to say. Other witnesses were suggested by the committee, and I know other names will be suggested to the committee. We expect a full investigation of this matter, a complete investigation. If there were any violations of the legislation, I think, according to the motion, this committee will try to find out.
The first thing we have to do, though, is this. We're studying a report. I've never seen it. We've seen page one in The Globe and Mail--“one” blacked out, and I don't know whether that was the report or whether that wasn't the report. The Globe and Mail said it was the report. Maybe it was, maybe it wasn't. Witnesses may come and say they have the report. That's not good enough for me either. I want to see some representative from the government come forward, or at least the clerk report to us that the clerk has the report. This was given to him by a government official, and he presents it to us.
The subcommittee did give the clerk instructions to do that. I assume he's gone off. I think it was made quite clear to us that it's going to be very difficult to get a clean copy of the report. I suppose anything's possible, but without a great brouhaha it's unlikely we'll get the clean copy of the report.
The committee then gave the clerk instructions to get the report where portions aren't blacked out. I accept that. I don't imagine he's got it today, because part of the reason is that it has to be translated. I accept that too.
Quite frankly, I think that calling witnesses before we see even the blacked-out portion of the report is preposterous. Witnesses are—
:
Mr. Chair, I am prepared to listen to Mr. Tilson, however, I think that, last week, we heard in great detail all the recriminations that he is repeating this morning. I don't think that we need to listen to them again.
I think that we should move on to the second item on the agenda and hear the witnesses. Even if he told us everything that happened last week and went into great detail, nothing would change. We will still go on to the second item. If we were to adopt the fourth report, which is the first item on the agenda, we could move on to hearing from our witnesses.
We are going around in circles and we went around in circles for five and a half hours last week. I don't think we need to go around in circles, again today. Today, we need to adopt the fourth report. We have talked about it, we voted to consider the report and to talk about it over the next few days. So, the member was aware of this.
Mr. Wallace says he wants to call upon new witnesses. He knows the procedure: he need only send the list of witnesses to the clerk. He doesn't need to tell the committee that he would like such and such an individual to appear; he can do it in writing, as per the procedure.
I move that we vote on the fourth report and that we get done with it, because they will drag it out until tomorrow morning.
:
Well, Monsieur Vincent, it's not a point of order that I ruled. Well taken.
This is the opportunity for members to debate this motion. Each member is entitled to his comments on this motion. If they are repetitive at this meeting, I will call them to order.
Mr. Tilson is now making the points he wishes to make not about whether or not we should proceed, as I hear it, but how we should proceed. That's part and parcel of the debate about the fourth report.
It may very well be that things may go on. It may very well be that we'll be annoyed about that, but that's life in the committee system. Unfortunately, in this chair I'm not about to abridge people's rights to address a motion if they wish to do so. How they do so and for how long will be up to them and it will be on them.
Mr. Tilson, you have the floor.
:
I've made my point, and I appreciate that.
The other issue, sir, having been a member of the subcommittee, is that we certainly agreed that the three witnesses who are in the fourth report be on a list, as were others—the Information Commissioner, someone from the ministry—and it was agreed that other names could be added at a later date. There's no question.
What I don't recall, sir, is that these particular witnesses appear today in this particular order. Our objection is not that these witnesses appear; I think these witnesses should appear. Our objection is that they're appearing in the wrong order, that the report should be first, the report should be given to the members of the committee so that we know what the report says. Secondly, the process should be explained to us, the process as to where applications under the Information Act go, by someone from the ministry--I think the committee agreed that someone from the ministry would come--and someone from the Information Commissioner's office, because that could ultimately go there, so that the committee—
:
First of all, Mr. Chair, because this is a public document, it's come to us, and all I have is one paragraph from the discussion. Obviously I wasn't there. All I was asking for, and I may have a motion to that effect, is that if we are going to name some witnesses, if possible we name all the witnesses that we've invited from the report. Based on what I see here from this report, that's what we're debating and discussing. And just because my colleague was there, it doesn't mean I have to agree with him. I know that may happen in the NDP, but I'm not sure.
Since this is a public document, I'd like to see what other witnesses there are, even if their date hasn't been assigned yet, so that if there are people we've missed and so on, that we.... That's what I would like to see--I'm just telling you--on the list of witnesses. I think I have the right to talk about the report. I'm not trying to talk for three hours, or however the paper put it.
I just want to make one point, because I was somewhat offended personally by Madame Lavallée's characterization of what happened. If we recall what actually happened at the committee, I had moved a motion--
:
Well, I was personally attacked. It was said that I was trying to delay something, and you've said it yourself. That is not the case.
I actually moved a motion at a committee--you were not here--verbally. I did not agree that it go forward, because I thought it was appropriate for it be translated and everyone to have it. In fact, once they got it, they didn't like it, but at the time they wanted to vote yes, in favour of it.
I have not been one to be obstructive. You may not have liked the time I spent talking about what was in the act at the last meeting, and that's fair. I had three points to make. I made them. It took a little time. It is not stopping us from moving forward on this. All I was concerned about is that we heard in a logical order the witnesses we would see. That's all I wanted to talk about, Mr. Chairman, and that's why I was asking the questions: are these the only witnesses, and can we publish the other witnesses who have been asked for? That's all I want to know from this report.
:
In that case, I just want to give Mr. Tilson a quick reminder.
At least three times, during the steering committee meeting, I told Mr. Tilson that the purpose of the motion was not to study the report. Yet he still claims that it is. The motion seeks to have the committee immediately consider the issue of the internal report, that it examine the issue, that we hear testimony and that we shed light on this apparent violation of the Access to Information Act.
Mr. Tilson, it is unfortunate that you are not listening to me, because I am speaking mostly to you. Since you are not listening to me, I can tell that I will have to repeat myself. In any case, you can read the “blues”.
Thank you.
:
Thank you, Mr. Chairman.
I had asked—of course, I didn't ask as such, but I indicated my preference—for us to go in camera. Had we been in camera, I'd be able to say this with greater comfort, but I don't have that option, so I now have to say it in an open hearing with everybody here.
I'm very disturbed with the way in which the subcommittee has acted. I don't want to suggest ill will on anybody's part—I don't think that's involved—but the way it's been acting, I think, is extremely problematic. It is in effect, although I'm sure not in intention, abusive of the rights of the committee as a whole, and certainly of me as a member.
I will explain what I mean by that.
:
Thank you, Mr. Chairman.
There are two basic problems here. I think we have a conflict between the two pressures that are upon us. That's not quite the right term, but one is the pressure of urgency, which is actually stated right in the motion itself—that we ought to act urgently. That means it's appropriate to try to move expeditiously.
I believe that's why, at the last meeting, I interrupted the speaker with a point of order asking about what was going on. You explained it and mentioned that there were to be witnesses here at the same time as the report.
I believe what you were trying to do, or I guess it would have been what the committee as a whole was trying to do, was cause us to move urgently and quickly. That's one thing we are trying to accomplish.
The second thing is to try to establish a clear respect for rules of order. I guess the rule of law”is not, strictly speaking, applying here, but the rule of precedent and order: doing things in an orderly manner that is going to allow us to proceed in a manner that is not an abuse of process, including an inadvertent abuse of process.
I think there is an abuse of process going on here. I think it is inadvertent and I'm trying, because we're not in camera, to emphasize that I think it is inadvertent.
But here is the problem. The first problem is the whole in camera thing: discussing something in camera and then moving to the larger committee, coming out of the in camera situation and presenting us with a report.
Mr. pointed out that we're being disrespectful of the witnesses by asking them to come here and then discussing the report. I think, with all respect to Mr. Peterson—I don't know whether he's on the subcommittee or not—the decision to invite the witnesses here, where they might find themselves unable to proceed about their normal lives, was a decision made by the steering committee, and not by a group I participated in. So I can't share in whatever guilt there is in that respect. But I think it's important to establish and move in a manner that is respectful of the rights of all involved, and of establishing a clear, coherent process.
The first problem here is with the in camera rule. The in camera rule says that what we discuss in camera cannot be divulged when we are not in camera.
I'm in another committee, the procedure and House affairs committee, which right now is discussing the problem of information that is dealt with in camera coming out when a committee is not in camera. The very act of doing what we're doing now means that information is coming out in public. There are disputes as to what went on, and there's no proof one way or the other, because we only have the word of one committee member against another committee member. We've already seen at least one dispute of that nature.
I find that very problematic. I would like to see us deal with all such future matters as the whole committee. I recognize that's—
:
Right. Well, I've explained now the context of the concern, that it wasn't presented to me till now, and so I've been trying to think what would be the appropriate way of moving here. The report does not deal with certain key elements that I'm going to suggest should be included. The elements I've described conceptually, but as a starting point, the original motion that Madame Lavallée put forward and which I amended, you may recall....
I know there have been complaints about other members going on at length, but I think I've tried to be very, very businesslike.
I proposed an amendment, which went through, so there was no presupposition of guilt.
Her original motion, which we are seized with, is on the question of any wrongdoing that might have occurred, specifically breaches of the Access to Information Act. At no point that I'm aware of has anyone pointed to the relevant sections of the access to information law. I think that has to be the starting point.
I'm fully prepared to accept that there may have been such breaches. That's indeed why I proposed the amendment I did, and then was...well, I wasn't actually here for the final vote, but I would have been supportive of the motion as amended.
We need to start by figuring out what it is that's been broken. I printed it out this morning. This is a long, complicated law. So I have a copy right here. I've been trying to go through it this morning, actually, trying to figure out what parts of this might potentially have been breached.
To summon people here, we would have summoned Ms. Sabourin, who I assume is the person who is likely to be the person—
Madame Sabourin has mentioned that she has been summoned here as a witness. She would have been sitting on a panel with Mr. Esau and, I gather, also with Mr. Attaran. I, for one, could not have asked intelligent questions to Professor Attaran because I didn't actually know what the connection was. I couldn't do proper research. So that is a problem as well.
I do have the article that refers to Mr. Esau, so I could have probably stumbled and pieced together a question there. I couldn't have asked very many intelligent questions of Madame Sabourin because I wouldn't have had time to prepare. That is inherently wrong. It is inherently wrong to have the witnesses here at this time, and certainly to have witnesses of whom we were not advised at that last meeting. Mr. Esau was mentioned, but others were not mentioned, and there's a problem when they're being summoned here and we can't ask them proper questions.
I would go so far as to say, Mr. Chair, that what was being proposed here by the steering committee—and again, I do think this was inadvertent, I don't think they intended this—was effectively a court of star chamber. I think we need to move away from that. I think we can move away from that while still being respectful of the initial motion that Madame Lavallée put forward and that I amended.
With that in mind, Mr. Chair, I want to propose an amendment to the motion. The amendment—I've had to do it on the fly, Mr. Chair, and I apologize for the fact, but that's the only option I had—is not in both official languages, but remember, I did not see this until now and therefore I can't be as respectful of—
:
I'll ask for the indulgence of the committee until the clerk and I are sure we have the motion in the exact wording, and I will read the whole motion into the record so that there's no argument later that I did not state the motion correctly or we don't know what the amendment is.
I think I have the amendment correctly stated. I'm going to read the amendment. It is moved by Mr. Reid:
That the fourth report be amended by inserting after the word “appear” in the fifth line the following:
(1) the Information Commissioner and such other witnesses as are necessary to establish which sections of the Access to Information Act may have been violated;
(2) Jeff Esau and Paul Koring of the The Globe and Mail;
I'm not sure that Mr. Esau is of The Globe and Mail, by the way. I believe he's a freelance. So we'll just say “Jeff Esau, and Paul Koring of The Globe and Mail”.
(3) Professor Amir Attaran;
(4) Jocelyn Sabourin of the Department of Foreign Affairs; and
such other witnesses as the committee, acting as a whole and in camera, decides to call.
So the motion as suggested to be amended, just so we all understand what we're talking about, reads as follows:
That the committee begin its study of the Department of Foreign Affairs' internal report, “Afghanistan 2006: Good Governance, Democratic Development and Human Rights” in relation to Access to Information requests for the document, by inviting the following people to appear in the following order:
(1) the Information Commissioner and such other witnesses as are necessary to establish which sections of the Access to Information Act may have been violated;
(2) Jeff Esau, and Paul Koring of The Globe and Mail;
(3) Professor Amir Attaran;
(4) Jocelyn Sabourin, Department of Foreign Affairs;
(5) such other witnesses as the committee, acting as a whole and in camera, decides to call; and further,
that the Clerk of the Committee request from the Department of Foreign Affairs a copy of the censored version of the report.
The motion is in order. It has been moved. Is there any discussion of the amendment?
I'll call the question.
:
I stand corrected on that, and I apologize, Mr. Chairman. You're quite right that this was an assertion on my part that was not verifiable.
What I've tried to do in this motion is establish the kind of procedure you have if you're trying to deal with this question in a logical manner that will be respectful of the rights of all those involved. You are going to start by finding out where the law might have been broken.
From what I've heard from previous discussions, the assertion was that the access to information law was broken because the untruthful statement is said to have been made that there was no report, and reference was made to Madame Sabourin—she's the person cited in the relevant articles—as being the person who presented a letter that made this comment.
Now, we haven't seen the actual letter. We only have The Globe and Mail's report of a letter. She was going to be here today to respond, but no one would have the capacity to question her properly. I guess we could have hoped we would be able to recall witnesses and ask further questions, but given the temperament on the far side of the room, where people are constantly interrupting, shutting down, I see no evidence to believe that this was actually going to happen.
Anyway, I had reason to be concerned. So the attempt here is to determine what aspects of the law are actually being broken. I intended as well--and I didn't have a chance to write it in my motion--to ask our Information Commissioner what aspects of the report we would be able to look at without ourselves violating the secrecy laws, before we tried to actually look at the report.
Can we look at things that have been redacted—that is, blacked out—but then have been leaked? To what degree can we ask to see the full documentation? I'm assuming The Globe and Mail may or may not have had more documentation. It certainly seems possible. Could we look at it? Would we have to look at it in camera as opposed to not in camera? As we can see, that itself has become contentious in this committee.
This is not meant to be a forum at which we proceed to reveal additional government secrets. That would be inappropriate. It could happen. I'm not saying it's anything anyone intended. I've tried in my comments to make the point that it is the result of inadvertence that we've gone down this path, but I think we have gone down a path where this sort of thing could occur.
This is one point.
Another point I want to go on to is that we're trying to ensure that we won't have a recurrence of today, where people come effectively without notice. We knew about Mr. Esau, but we didn't find out about the other witness, Professor Attaran. We didn't know he was going to be here.
The observation has been made—
:
I'm trying to move on here. But I think it's important to point out with regard to this that I could not have known that, right? We were saying, well, your committee member could tell you. We're not supposed to breach the in camera rule and talk about what goes on inside in camera meetings.
Anyway, regarding the structure, asking Mr. Koring to come, as well as Mr. Esau.... I stand corrected about the fact that Mr. Esau doesn't actually work for The Globe and Mail. But the only basis I have to know anything about Mr. Esau at this point is what was mentioned in The Globe and Mail. It was basically a passing reference that he had placed a number of research requests. So at this meeting, I was operating under the incorrect assumption that he was a Globe and Mail employee.
The reason I suggested Mr. Koring is that he wrote the relevant article. It was part of a series of articles, but he wrote the article that's relevant and related to the issue of access to information documents, as opposed to the separate discussion of the treatment of detainees in Afghanistan, prisoners in Afghanistan.
I was trying to think of all the people at The Globe and Mail, without being exhaustive or abusive of the process by asking people who aren't relevant, who could actually comment and provide us with proper information on this issue. Thus, the two names.
I listed Jocelyne Sabourin, who of course was mentioned. It's appropriate that she be here. I suggested her coming after the other witnesses, partly because at that point she'd have the capacity to respond. Also at that point, we would have been able to ask Mr. Esau to give us the full text of the correspondence that had gone on between us.
It seems to me that if the assertion is made that someone has been misleading and is in violation of the act, the attempt was made to point arrows at somebody. I'm worried that she would not have an adequate opportunity to defend herself. So that's the logic of putting her on the list.
I apologize. I don't have a copy of my motion in front of me. I'm trying to do this somewhat from memory, Mr. Chairman, as I go through the points.
Then I put down, “such other witnesses as the committee, acting as a whole and in camera, decides to call”, and I've already given the explanation of that, so I won't belabour the point. But I think we ought to be making further decisions as a whole committee on who would come as witnesses, so that we are all able to be properly apprised.
What we saw today is that we were not properly apprised of who was coming, because it was sprung upon us. It's the usual practice, but it's a practice that's inappropriate. We need to be properly apprised, so we can do proper work. This is a serious matter.
So in essence, that is what I've got down here.
Actually, I missed on my list that we should get our legal counsel, Mr. Marleau, here to advise us on what we can and cannot request, and how we ought to do it—whether in camera or in public—in order to ensure that we are respectful of what ought to remain secret, while at the same time getting full access to what need not be secret, and at no point reveal what ought to be looked at in camera. I think there is a clear distinction between looking at documents in camera, collecting them at the end, and ensuring that they not be widely revealed.... In other words, I can guess at what we can do, but it's just guesswork. I'm not a lawyer, and I'm certainly not the House of Commons legal counsel.
So those are the observations I had to make with regard to the motion, Mr. Chairman.
:
Mr. Chairman, I followed the course of the discussion with great interest. It occurs to me that—and with the greatest respect to honourable members—this is our first piece of business on the agenda today. This is the first opportunity that we've had to see the report and consider it. And really, I certainly freely admit that this discussion is taking some time, but I think that it's perfectly appropriate.
It occurs to me, Mr. Chair, that one of the responsibilities we have as members of the standing committee is to consider the matters before us and ideally have the information in front of us before we come to a committee, be prepared to bring arguments and bring suggestions and debate and hear witnesses.
When you look at the context of this discussion, this topic that we're dealing with, this arose out of allegations that appeared in a Toronto daily newspaper. Going back to the first motion that Madame Lavallée brought forward, this point of discussion was steeped in insinuations about access being denied, much of which flowed from the very words of a newspaper article. It appears to me, Mr. Chair, that we, as a committee—and I, as a member of this committee—are treading into an area that is relatively thin from a legal perspective. There are potential complications here with references to, for example, an unredacted version of this Afghanistan report becoming available. I don't know, as a committee member, what legal implications that brings to put discussions of that nature into a public forum like this, especially now that it's public.
It also occurs to me that insinuations have been made, presumably directed towards the department, that this report was somehow denied access. I don't know what kind of implications that might bring against the individuals involved. Are we treading into an area where we might be impugning the reputation of a civil servant, a public servant, who may be in fact just exercising the course of their duties?
Mr. Chair, there are some legal questions here, and so I support the amendment. I think it's important for us to have the right context before we start going into hearing witnesses on a question. And I support the notion, for example, that.... I mean, the very first line of the motion says: “That we urgently address the internal report by the Department of Foreign Affairs”, etc. We don't have the report. We haven't seen it except for excerpts that have been showing up on the Internet and so on. I have not been able to be properly briefed and brought up to speed on this issue, except with what's essentially in the hearsay world.
Another point, Mr. Chair, is this. I have to say that as a new member of Parliament I've been amply impressed at the work that our researchers do, our analysts, in preparing information for these meetings. They've had no opportunity to prepare for witnesses and provide the proper context for the debate on this topic. This is the first time we're seeing it. We've been asked this morning, as our first piece of business, to consider the fourth report of the subcommittee on agenda and procedure.
Going back to this concern that I have about the public servants, I think it would be vitally important that before we hear from who I would say are the original crafters of the newspaper article.... Questions revolve around what information is out there. Is it legal for them to have it? What I would propose, Mr. Chair, is a subamendment to Mr. Reid's motion. And I would ask that in addition to the early witnesses on that list, before we hear the potentially volatile and/or insinuative—I don't even know if that's a word—accusations that may be directed against the public service, we understand the proper legal grounds that we're working on.
I would therefore add Rob Walsh, the House of Commons legal counsel, to the list of the witnesses, so that the committee can properly understand the circumstances, the environment we are considering here.
If I could, I would propose that as a subamendment to Mr. Reid's amendment, to add Rob Walsh, then, as legal counsel.
Mr. Chair, I think Mr. Walsh should probably come—this would be, I guess, the new item two on the list—after the Information Commissioner but before Jeff Esau and Paul Koring from The Globe and Mail.
:
The question should be addressed to the chair, and the answer is that the Department of Foreign Affairs has the English version. They're in the process of translating it. They assured the clerk that the document would be available. It was my understanding that it would be available in both official languages by today's meeting. It is not. I do not know the reason it is not available in both official languages.
When I'm saying “the document”, I'm talking about the document that's referred to in the fourth report, which is the “censored version of the report”.
Frankly, I'm a little surprised that the document has not yet been translated. I really don't understand the delay in that, and it's certainly a question that could be asked. But that's the answer to the question.
There is no question the department will provide us with a copy of the censored report, and would have provided it but for the fact that it had not been translated. We are in the process of trying to get the official translation from the department and being able to distribute it.
When we do, we'll distribute it immediately, not at the beginning of a meeting.
:
Well, Mr. Chairman, I just want to indicate my support for the amendment. But the process we're following.... We're going to ask the two witnesses who are before us, who have been asked to come today—and I can only repeat, I don't recall agreeing to that. I agreed that they should come, because they are players in this drama, but I didn't agree that they should come in the order that they're coming.
Mr. Reid is quite correct in outlining the process, to explain it so we can properly ask questions of these witnesses, properly prepare for these witnesses. I knew these names, because they were mentioned to me in the subcommittee report. Other members of this committee on both sides may never have heard of these names. The first time they were mentioned was in that subcommittee report.
Am I calling it the correct name, the subcommittee? That's right, there was a discussion where representatives from all four caucuses were present.
That was the first time these names were mentioned. We don't come to these meetings and wing it, Mr. Chairman. We come prepared. We want to know who the witnesses are so that we can research, so that we can ask intelligent questions of these witnesses; otherwise we'll have to have them come back.
The whole purpose of the process is that we have some idea of who these witnesses are, what they have to say. The researchers generally prepare excellent presentations for us for questions that we may put to these two witnesses. They have not had that opportunity. The first time they have had the opportunity to see these names is today. They read the papers like everyone else, I suppose, but they had no idea that these witnesses were coming. At least, I didn't tell them. Unless you or the clerk told them...and I don't imagine you did that, because you're not allowed to.
The first time we had these names available, the names of the two people who are before us, was this morning. So we're going to sit here and just wing it. Some of us don't know the procedure. Some of us do, because we've been through some of these things before, but not all members of the committee, with due respect, are aware of the procedure of how you go through these things.
I'm disappointed that my colleague didn't put the report on, but I'm confident that the report will come, and I accept your statement, Mr. Chairman, that you believed the report was going to be presented today and that it didn't come today.
So I think that the order Mr. Reid has put forward—
:
Thank you, Mr. Chairman.
This is the fourth report: “That, the Committee begin its study of the Department of Foreign Affairs internal report, “Afghanistan 2006: Good Governance, Democratic Development and Human Rights” in relation to Access to Information requests for the document...”.
That's why the two witnesses have come to us, I assume. I don't know, because I don't know what they're going to say. I trust they were going to say that the procedure hasn't been followed with respect to this report. The report says that we're going to begin the study of the report.
I believe that you and the clerk have done all you can to get this report to us this morning. It's not your fault, but it's not here. I don't know what questions to ask these witnesses until I've seen the report.
It's not part of the amendment—
:
They don't care; they don't listen to what we say anyway.
I'm simply saying that I want to be able to ask these witnesses proper questions. I don't know about the opposition, but certainly on this side, we try to find out the topic, the area of their expertise. We have some idea of what these two witnesses are going to say; they've been in the newspapers.
Quite frankly, I didn't know they were coming this morning. I know you and I have disagreed on that, but I'm going to say that. Certainly other members of the committee, opposition and government, didn't know they were coming this morning. They all want to prepare for it too.
We have an obligation as members of Parliament, as members of this committee, to be as fully prepared as we can when witnesses come. Otherwise we have to listen to what they say and have them come back again. Our job is to prepare, and I haven't had an opportunity to prepare.
One of the ways in which I want to prepare is with respect to this report. I want to be able to look at the report and read it, so I can ask the appropriate questions to these two witnesses, who I assume have seen it, but maybe they haven't seen it. Maybe this is the one they were saying they weren't allowed to see. I don't know, but at least I want to be able to see it, so I can try to ask reasonably intelligent questions. Now, if they come this morning and give evidence, I'm asked to ask questions about a report I haven't even seen. I haven't even looked at it.
Yes, I've seen the two sections in The Globe and Mail, and that's all I've seen. I don't even know whether that's the report. That's what The Globe and Mail says is the report, but maybe it isn't. I want to see the official report before I ask these witnesses. I think that starting these proceedings at this time is inappropriate without getting the report.
Also, Mr. Chairman, Mr. Reid has quite appropriately listed the Information Commissioner. The Information Commissioner is the expert. We did talk somewhat during the estimates, there's no question about that. We talked about this subject during the estimates, but I think that before we can ask appropriately intelligent questions of any other witness—whether it be from the staff in Foreign Affairs, someone from The Globe and Mail, Mr. Esau, the professor, or whoever—Mr. Marleau and his staff should come and give us a full briefing as to this situation and how we should conduct ourselves.
Mr. Chairman, it's appropriate that it be made quite clear by this committee that it's not going to be just exclusive to names that come out of the subcommittee. There may be other names, but we haven't had an opportunity to put those names forward. We haven't had an opportunity to determine the order of those names, because all of a sudden—slam, bang, boom—this report comes to this committee.
There may be other names as a result of the report that the committee may wish to put forward, ahead of Mr. Esau's name and ahead of anyone else.
The committee surely has some control. Surely they have not signing everything over to the subcommittee. The purpose of the subcommittee is to debate in camera, listen to legal advice—and we did get some legal advice—and other matters. That's the purpose. The subcommittee doesn't decide what happens in this place. This committee hopefully rules its own house.
Mr. Chairman, I would encourage members of the committee to support the amendment of Mr. Reid.
This party on the other side—whatever you want to call it: the Alliance, Reform, or Conservative Party—spoke of the importance of transparency and accountability. Here we are on this issue of great importance to Canadians, and all they have been doing in this committee is blocking, filibustering, and stalling at every opportunity they get. It is disgraceful that we have two advocates for freedom of information who have worked long and hard to get to the truth of this important issue, for access to the information about Afghanistan, and this is the issue this government would like us to lose sight of.
That is disgraceful, and it is a black mark on democracy—not on the words of the report.
I would request that all members, especially Mr. Tilson.... You have been in this committee long before us, and you should get on with it.
Mr. Chair, through you to Mr. Tilson, because he is the senior member on this committee, he should advise his colleagues to get on with it and get the transparency. They've lost this concept of transparency and accountability so soon.
I had the report. I knew who was coming to this meeting, and I'm fully prepared for it.
Mr. Tilson is saying, Mr. Chair, that he's not prepared. I don't think that is the excuse. I'm fully prepared with my questions to these fellows. I haven't met those fellows before; I haven't read what they're saying. But this is all about access to information. We cannot block this.
It is a black mark on the democracy. That's what I would say.
Thank you.
Let's talk about accountability. I'm glad my colleague from the other side raised it. Part of the accountability we have, especially on this committee, is to be responsible for understanding what topics we have in front of us. This is the first time we've had this report, this agenda in front of us today.
I suppose the subcommittee voted to have witnesses appear on the same day. All we have had in preparation for today's meeting is newspaper articles.
Madam Lavallée circulated the one on the topic of our meeting last Thursday, and we had another one from several weeks ago that seemed to instigate this whole series of discussions.
There is nothing more important for this committee than to get to the bottom of the issues at hand here. My hope is that as committee members, we find that the proper protocols of access to information have been followed to the T. But the fact remains, Mr. Chairman, that we do not have.... I know it's your committee.
The report here says that we'll request a copy of the Department of Foreign Affairs copy of the censored version of the report. You've indicated verbally that that report was supposed to be here today. To this date, I have not received a copy.
I'm also moved to consider the whole topic of the unredacted version. As committee members, how can we properly devote ourselves to this discussion without understanding the context of what raised the issue here, which were two points: first, there were allegations that initially the report was denied, and second, somehow a newspaper has an unredacted version.
How are we, as committee members, supposed to understand the context of our gathering evidence, as the motion says here, to consider the matter? How am I, as a committee member, supposed to consider the matter when I don't have the redacted version of the report?
To be honest, I don't know what procedures would have to be in place for us to see the unredacted version, but are we to rely on the opinions of just the journalists of our world? I mean no offence to journalists; they perform an important role in providing information to the public. But at the end of the day, our responsibilities go beyond that. We have to get to the facts around this particular issue. How are we to understand the context of this report without seeing the differences?
Perhaps I'll put the question to you: procedurally, how is that to happen? I do this in the context of the reason I say all of this. I'm supporting the amendment. I'd like to have the report in front of me, or at least have a day to have a look at it before we go and start hearing witnesses.
Second is that we have the information in front of us that we need to consider. Is there a way we can get the unredacted copy? Is this something the subcommittee considered?
:
I'm going to answer it this way. We're debating the fourth report. There's no mention of the redacted version in the fourth report. There's no mention of the redacted version in the amendment, so I'd like you not to refer to it anymore.
From the procedural point of view, there may or may not be an opportunity for us to get the redacted version. That is not part of this debate, and it would obviously form part of decisions that we may take in the future, once we've heard evidence from other people. Then the committee would decide what, if anything, it would want to do to try to get the pure version, if I can put it that way, of the report.
There are varying legal opinions as to what the committee can get and how they can get them, but that's not the subject matter of this report, nor the amendment.
Do you have any further relevant comments to the amendment?
:
I do, Mr. Chair, to follow up and say that that's why I support the amendment. I believe that the amendment brings a proper and orderly course to this discussion, to this gathering of evidence, as we say.
Notwithstanding what's been said across the way, I think we need to get to the bottom of this issue. We need to get it properly done. But for the sake of what appears to be expediency on some members' parts...we have to do this right. We have to be well informed. I'll say it again: the researchers and analysts have not had a chance to take a look at this. They presented us with nothing.
Here we are called to a meeting, we see this report for the first time, and you want to send us in to see witnesses. All we've seen are newspaper reports. That's the only thing that has been available to us to get properly prepared.
Again, I say that I would be loathe to get into this rather contentious issue without having the proper background and the information that I need as a committee member to properly exercise my responsibility.
So I support the amendment.
My earlier questions to you went to this exact point, where I thought we should be listing out more witnesses we wanted to see. I appreciate my colleague putting it forward as an amendment.
Comments have been made about trying to see people in an orderly manner; and let's be frank, we're not trying to avoid anything. The witnesses we have here today are listed in the amendment, Mr. Chair, and we just want an appropriate order for them to be seen.
I was a little surprised that the subamendment did not pass, that the committee did not want legal advice on what they can and cannot receive, do with it, and so on.
So the motion goes to my earlier point, that other names have been submitted. There is a process of how an ATI request is handled, and why we're not dealing with it in the same manner, so that we have a logical, step-by-step approach to this issue.
It had been mentioned, and I think it's only fair to say, that my colleague from the Liberal Party gave us a bit of a lecture on this amendment, saying that it isn't transparent. In fact it's more transparent. It lists everybody we want to make sure we see, and it is in an orderly fashion.
Yesterday I was at a committee, Mr. Chairman, where the Liberal chair slammed the gavel and walked out because he didn't like the Conservative motion, and the committee ended. I don't know how transparent that was.
I know that last week the Liberal Senate committee passed something in 43 seconds, because they made sure it happened when the Conservatives weren't in the room. So transparency is not the issue.
In actual fact, the amendment is more transparent than what we have, because I didn't know who else we were inviting. It lists in order who we'd like to see, and why that order would be so, as explained by the mover of the motion. I don't know why we're not moving ahead on this.
I'm also going to ask for a recorded vote on this amendment, if that's possible. The recorded vote is reasonable in that it would show the members of the committee who are supportive of who's coming and those who aren't.
I should have asked for a recorded vote on the legal advice, because I think it would be shocking to most people that the committee doesn't want to see any legal advice on an important issue to the committee—
:
I appreciate your view on that, but one of the witnesses was for legal advice from the House. It did not pass. So if there's another way we can get legal advice that I don't know about.... As Mr. knows, I was not at that meeting. I did not get that legal advice, so he can say that another committee member was there, but....
So I was not opposed to getting that legal advice. The issue is, are we doing it in the right order? That's all this is. Are we being transparent by letting everybody know who we're calling and when?
This amendment would also allow us to properly plan the panels that would come, so that we would deal with the Information Commissioner and the individual from the department, mentioned in today's amendment, in a manner where we're not pitting them off against the other. But we would allow a very professional approach to this item.
So I'm supporting the amendment that's in front of us. I'd like to see a recorded vote on it. I think it's important that the public knows where we're going.
I would like to be able to ask questions of the individuals who are listed here. Based on what's in front of us in the fourth report without the amendment, I'm not sure there is another meeting. It doesn't say anything about future meetings; it just talks about this particular meeting.
Through the amendment, this would indicate that there would be future meetings and other witnesses coming. Obviously those witnesses aren't here today. They probably would need proper notice to get here. One witness who we thought might be here isn't going to be here.
Those are my comments. I'm supporting the amendment, and I'm going to be calling for a recorded vote.
:
Mr. Chairman, I would just add that this is difficult. I asked that we go into in camera proceedings to discuss the business of this matter. You've made the ruling, but I don't agree with it. I respect you for it, but I can only emphasize that it's another example of why we should be discussing this in camera.
The whole idea has now come out that the subcommittee had legal advice. We had two lawyers there, giving us advice on a whole slew of matters. Quite frankly, I think it's appropriate that the committee receive that legal advice. Even with your ruling, you would agree that legal advice should be held in camera and that there might be legal questions that members of the committee will ask.
Incidentally, I'm not sure I agree with your contention at the beginning of this meeting that I can go to my colleagues and talk about what went on in that subcommittee meeting. The contents of that meeting shouldn't really get out until this meeting. The minutes should be in private session, because even now we're talking about lawyers. It has now come out that we had two lawyers come and give us legal advice, which is true. Two lawyers came and gave us legal advice on a wide range of issues. I believe members of the committee should have an opportunity to ask those same types of questions.
Mr. Martin will say I can go and tell my colleagues. Well, I'm not so sure I can do that. I'm not sure you can go and talk to your caucus about those sorts of questions. There may be other questions that members of this committee may have of those lawyers. Quite frankly, they should be asked before we hear witnesses. What rights do we have to ask certain types of questions? What are the repercussions of testimony that may be coming?
We're talking about breaching the provisions of the Information Act, and those are very serious allegations. Someone may or may not make those allegations during this committee hearing, whatever number of days they're going to last. Before we get into that, lawyers should come here, and it should be quite clear to members what their legal rights are, as members of Parliament, to pose questions and to make statements with respect to these matters.
Mr. Chairman, I quite frankly believe that before any proceedings start, before witnesses such as the professor, Mr. Esau, and the person from the foreign affairs department come, we should have a whole slew of introductory briefings before we proceed with that type of hearing. That's not being done.
:
My point is that the discussion is a protest on procedure. This is what the Conservative Party is arguing: the order of the witnesses called, before we've had an opportunity to examine the article in question, as well as officials from the government who would be responsible to it. This is highly irregular.
When I came here this morning, I was not prepared for this. I would have liked to look into the background. Who are the witnesses? Who do they work for? Are there other articles that they've written? I would have liked to re-read the articles in question. I haven't had that opportunity. To sit here and to suddenly, again....
You asked me, Mr. Chair, what relevance this has in regard to my point. The point is that the rug was suddenly pulled from under us on the last item that we were talking about, and now we suddenly have this new development. It's out of order.
I don't feel we've been given proper time, and I also would argue that the way in which we're proceeding is, first of all, not fair. It's not even fair to the witnesses. It's certainly not fair to the committee members, and I feel this is something that needs to be addressed.
Those of us on this side of the House should be able to have the same opportunity as the other side. Just because they have a majority of votes, they seem to think they can force this thing through. The whole thing is creating bad will. It's certainly not going in the right direction that everybody hopes it would in terms of our coming up with a fair and honest report. I just feel this is going in the wrong direction.
I agree with the amendments to the motion. This has to be studied in more depth.
As our discussion has continued along here, it has become increasingly clear.... In fact, we have the revelation that the subcommittee did have legal counsel available to it. Of course, that legal counsel has not been available to this committee. I realize and perfectly accept that my proposed subamendment to the amendment currently before us did not succeed. But the fact of the matter is, Mr. Chair, that it has now come to light that there was legal counsel involved in shaping the report and the motion before us.
Mr. Chair, that's one of the reasons I certainly support the amendment to the report, so that we can have a proper order. I would say again—and it's really a question to you, sir, and this is perhaps a point of procedure—that should we get through this, for example, and should the report then be put before the committee, there will be a decision taken. Once it's taken, are the deliberations of the subcommittee, which I understand were in camera, then made available to us? I'm thinking that in terms of the context of those arguments that the subcommittee must have considered, it would really be very helpful that we have that information available to us for the course of this study. Is that something...?
:
So back to the amendment in terms of our consideration, I take the mover's fifth point, that the committee, acting as a committee of the whole and in camera, may wish to call other such witnesses. But what you're saying is that we just need to propose those witnesses, that it doesn't necessarily mean they're going to be following in some order.
My point is that before we hear what I would say is perhaps the more sensational end of our witnesses on this particular subject, it's proper...and this is where I go back to my whole support, the essence of my support, for the amendment. As committee members we're not properly able to deal with this, and we need to have the benefit of the background.
Mr. Chair, with all due respect to the subcommittee, we just don't have it. We don't have the report. I've made that point again. I understand that. But in my experience, and I've sat on a number of different boards, private and public, the responsibility that you have as a committee member is that you're participating in a process to get to the essence of the information that's in front of you. You have to be well informed.
The motion compels us to look for all the consideration we need to give to the subject. The fact of the matter is, Mr. Chairman, that it has not been there. That's why I support the motion. I would also say that in the course of looking at the study, it comes as a complete surprise that we move on this today. I believe the amendment that's in front of us permits us to look at this in an orderly fashion and frankly, Mr. Chair, allows us to get back to the important work this committee already agreed to with respect to the study on identity theft.
I take the point that this was said to be urgent, that we needed to proceed on this in an urgent fashion. I believe the amendment allows us to do that, and it allows us to do that in a proper and structured way, to be able to get back to an orderly business so that we can get to the bottom of these issues, and then get back to the study that we all agreed as a committee needs to be handled in due course and as quickly as we can, and also our study on identity theft.
Again, Mr. Chair, I support the amendment. I believe it would be very unwise for this committee to proceed without proceeding in the manner proposed by Mr. Reid.
Mr. Chairman, has clarified what he believes is the more appropriate order to follow with respect to this investigation. The report says, of course, that Mr. Esau, Professor Attaran, and Ms. Jocelyne Sabourin should appear. He has suggested that the order should be changed.
You have to remember what this is all about. This is about the allegations that really came from an article Mr. Koring wrote in The Globe and Mail, in which he alleged that the government denied the existence of this report. That's how all this happened. That's why we're debating all of this today. It's because of that allegation.
has quite appropriately put forward the Information Commissioner first, ahead of Mr. Esau and Mr. Koring and the professor, in order to discuss or to explain the processes. I'm not going to go into that, though, because I've already made that submission to you.
In his second point, then talks about having Mr. Esau and Mr. Koring come. Mr. Koring refers to Mr. Esau in one of his articles—and he wrote several of them. But the main point we have here, as I've said, is in an article that Mr. Koring wrote on April 25, in
The Globe and Mail. To quote from his column, Mr. Chairman, it stated:
Initially, [the government] denied the existence of the report, responding in writing that “no such report on human-rights performance in other countries exists.” After complaints to the Access to Information Commissioner, it released a heavily edited version this week.
That one paragraph tells me that the first person we should see is the Information Commissioner, because that's where all this started, with the allegation that “After complaints to the Access to Information Commissioner, it released...”. That's according to Mr. Koring, at least, but I don't know whether this is true. That's what he says, so we'll have to ask him about it. That's the reason put the Information Commissioner forward as the first individual.
The second individual is Mr. Esau, because I gather he made an application. He'll tell us whenever he comes to speak to us.
More importantly, one of the first witnesses who should appear before us, after the Information Commissioner—which this amendment addresses—is Mr. Koring. Do you know why? It's because of this article that he wrote in The Globe and Mail.
:
Mr. Tilson, I have to stop you there, because it's eleven o'clock.
Is it the will of the committee to continue its deliberations?
Some hon. members: Agreed.
The Chair: Can I have a show of hands by all those who wish to continue the deliberations?
An hon. member: I'd like a recorded vote.
The Chair: It will be a recorded vote.
(Motion agreed to: yeas 12; nays 0)
The Chair: It's unanimous.
We are suspended for a few minutes until we go to room 253-D, and then I'll reconvene the meeting.
Is there unanimous consent to allow journalists to bring their cameras into the room?
Some hon. members: Agreed.
Some hon. members: No.
The Chair: There is no unanimous consent.
Here's where we are. We are discussing the amendment that moved, to the fourth report. has the floor.
I want members to be very clear. We've had two hours of debate. I'm going to be very strict on repetition. If I hear repetition from anybody, I will stop the speaker immediately, bring them to order, and ask them to move to a new point. If they cannot, I will move to the next speaker.
We are on the amendment by Mr. Reid, and we are hearing Mr. Tilson.
:
Thank you, Mr. Chairman.
As I indicated before we had our short recess, what got this all going was a report from an article in The Globe and Mail—at least, I believe it was—by Mr. Paul Koring that the amendment addresses. In it, he makes a number of very serious allegations. I want to proceed with this as soon as possible.
I assume members of the committee have seen this article, so I'm not going to read it. I've quoted one or two paragraphs of it. I'm not going to do anything further, other than to say that because of that fact—unless someone's going to disagree with me—that's where many of these allegations came forward. His name isn't on this report. The names that are on the report are people who are most relevant. I submit that I agree with the amendment because this individual should be heard before the other individuals, and after the Information Commissioner.
Mr. Chair, like the original motion, the report requests “that the Clerk of the Committee request from the Department of Foreign Affairs, a copy of the censored version of the report.” You've indicated to me that you have done that, and that you hoped it would be here today.
Mr. Chair, I'd like to go further than this amendment, and I'd like to make a subamendment to the amendment. What I'm suggesting goes after the word “report” in the final line of the fourth report, where it says, “that the Clerk of the Committee request from the Department of Foreign Affairs, a copy of the censored version of the report”. I'd like to propose a subamendment that has the following wording: “and that the Committee as it...”.
I'm adding on, sir. Are you following what I'm trying to do?
:
Perhaps you can help me to achieve this. I'm perfectly cognizant of the subamendment to 's amendment.
You mentioned the information that's available from the subcommittee, with respect to the legal context that the subcommittee was privy to but we were not. In consideration of that, I would propose that we add to the list of witnesses, after the fifth point, which reads, “and such other witnesses as the committee, acting as the committee of the whole and in camera”, in that we express the notion that the committee should also have available or distributed to it the text, the blues, or the minutes of the legal context that the subcommittee had access to in respect of these discussions.
In other words, we've heard that Mr. Walsh and one other representative of the House of Commons legal counsel had that. I respect the fact that the committee has decided it doesn't want legal counsel as part of our group of witnesses. Moreover, we've left that option open to us in the future, but not in the order that I proposed earlier in a subamendment.
Granted that, would it be possible that, at the very least and in addition to the order that has been proposed, we compel the subcommittee to release to us the information that was available to it from a legal point of view? I would say again that I believe it is important for us to have that proper context. Could we therefore add that as an additional item?
The amendment, in fact, is basically mapping out for us a course or a direction, if you will, as to how we're going to proceed on this important topic in order to get to the root of the issue. I believe that's an important piece of the puzzle. If we don't need a witness in there or if the committee doesn't want a witness in that order, then let's have the information available to us, at the very least.
:
Before I get to your subamendment, let me just speak to the committee as a whole. First of all, there's nothing preventing this committee from calling Mr. Rob Walsh at any time they want. Of course, if we pass this amendment and we subsequently pass the motion, we'll have to follow the order, but that does not preclude our calling anyone the committee wishes to call at any time.
So I don't think committee members should be concerned that they're not going to hear from the legal counsel if they don't deal with it today. That's just, in my view, a straw man.
I want to assure the committee that as the chair, at the request of any member of the committee, I would be very pleased to seek the unanimous consent to call Mr. Walsh, and if it were not forthcoming, then we'd get into debate about it. But the point is that there should be no fear on that score.
The clerk advises me that the normal procedure of in camera meetings—this is the normal procedure, but we of course are the masters of our own home—is that any members who wish to review the in camera evidence of the subcommittee can go to the clerk's office and review that evidence at their leisure, but they are not allowed to make copies or notes. That's the normal procedure.
Now, if the committee were of the view that they wanted to distribute the minutes of the subcommittee meeting to the regular committee, then the committee could agree to do so. I would urge that if we do it, we all agree that the evidence remain in camera. If the committee wishes then to agree to the contrary—that the evidence of that meeting will no longer be in camera—the committee has the power to do that, but I don't think that would necessarily be wise.
What I'm saying is, first, that it is already within the purview of members of Parliament of this committee to visit the clerk and review the evidence that was heard and the discussions that took place and the statements that were made by the parties who were there; and second, that there is nothing precluding the committee from calling witnesses who perchance aren't listed here. Mr. Reid was very careful to craft his motion in such a way as to allow other witnesses to be called, in at least two of the five points that he has listed.
Given that, I'm going to say that your suggestion for a subamendment would not be in order, because the amendment talks about witnesses, and calling witnesses in a particular order, and looking at the evidence of the subcommittee is not witnesses.
I make that comment to the committee as a whole, hoping that we can move on with the understanding that there's nothing secret from the committee. If the committee wants to see what happened, they can go to the clerk's office and take a look at it.
Do you have any further relevant comment on the amendment?
:
I guess you'll have to decide that yourself.
It was moved today. It was handwritten today. It was only in one official language. And I did read it.
If you don't mind, let me.... By the time I finish my remarks, I could have read it to him.
It continues:
(2) Jeff Esau, and Paul Koring of The Globe and Mail;
(3) Professor Amir Attaran;
(4) Jocelyne Sabourin from the Department of Foreign Affairs; and
(5) such other witnesses as the committee, as a whole and in camera, decides to call.
An hon. member: Can we add to that—
The Chair: No, that is the amendment that has been moved.
I have read it. This is the second time I've read it in full. Do you have any relevant and new commentary on it?
:
Okay. I'd like to follow up where Mr. Tilson was going. He and I were discussing it beforehand.
It's obvious that we have a disagreement as to the procedure. We feel on the government side that this was sprung on us. We also feel that we have no objections to looking into this matter, but obviously the outcome to any conclusion, or at least reporting to...whatever that procedure is, is very important. Thus we have argued, right from the beginning, that we take issue with the fact that if the witnesses who have been called have not, at the least, been called according to a wrong procedure, we haven't put proper protection in order.
When I say “protection”, I'm talking about the fact that we're dealing with something that, as far as we know, is alleged. The reason I needed to have this thing read to me again was to see at what point we can interject the suggestion or the amendment that we first of all have before us the documentation.
:
Again I rule your point not well taken. I think what Mr. Van Kesteren is saying is that in his view it would be prudent to have the report before we proceed with any witnesses.
But then, that's not relevant to the amendment, because it's not mentioned in it.
By the way, witnesses do not have to provide a written statement or any statement before they come, and they can say what they want. I don't think it's fair to the witnesses to presuppose what their evidence will be. We'll hear what their evidence is and we'll decide at that time whether it's relevant. We can assess what weight we want to put to hearsay, or whatever the case may be.
So I ask again, are there any comments relevant to the amendment, Mr. Van Kesteren?
:
I cannot answer that, Mr. Peterson; I know you're asking a rhetorical question.
There were other methods we could have used, but we were assured by the department that it would provide the translated report. Now we're assured that it will come by Friday at noon. I can only assume that the committee would be very upset if, by the time we return a week from Tuesday, that document is not before us in both official languages, and we might decide to do something else. But that's a different issue.
Can we get back to dealing with this amendment and then move on, so that we can deal with what we need to deal with?
Mr. Reid, do you have any further relevant and non-repetitious arguments with respect to the amendment you moved?
:
Mr. Chairman, this whole issue—the purpose of the motion, the purpose of the report—involves whether or not the Access to Information Act has been violated by either the government or by other individuals. And I add the Official Secrets Act.
We're talking about very serious and confidential information. Inadvertently, this committee could blurt something out that they know which perhaps they shouldn't blurt out, that violates those pieces of legislation.
We will need advice, not just from legal people but perhaps from other people, people in the ministry, who will guide us as to the types of questions we may ask and whether those questions are appropriate, to assist us in examining, from witnesses, whether these pieces of legislation have been violated.
I don't think we should be going into this cold, Mr. Chairman. None of us is qualified. Well, I'm not; maybe others are, but certainly I'm not. I want to receive advice not just from legal people; there may be other people whom the committee may deem necessary to call to provide us with assistance before we hear evidence from other witnesses who are on the list Mr. has called for; or indeed, whether that amendment fails or not, other witnesses whom the committee themselves may wish to call at a later date.
That's why, Mr. Chairman, I have proposed this subamendment.
:
Yes, thank you, Mr. Chairman.
As we follow the course of this discussion, it becomes very clear that the opposition are not interested in seeing this order carried forward. We think we've dealt with this in a practical way to try to get the right order of witnesses, so that we can be properly informed going forward.
We've also talked about the report. You've said that we now hear we're going to have the report tomorrow. I'm also cognizant of the fact that through the course of our elongated meeting today there are excerpts of that very report being circulated, which government members certainly don't have access to. If we were going to move along here and get this amendment through and proceed with today's business, I think it would only be right that we at least have the same information in front of us as other honourable members are privy to, especially if it pertains to the topic that, as we get through these procedures, we'll be considering.
My suggestion is this. Since the point of contention is that we have witnesses here today and that we would like to see them come forward, I wonder if honourable members might consider that we move the order, such that we would put “Mr. Esau, and Paul Koring of The Globe and Mail” in first order; that we move them to the front of the pack in terms of the order of the amendment that has been suggested, followed by all the rest.
I'm cognizant of the fact that the other proposals around subamendments have not been fruitful and have not been adopted, but if we put “Jeff Esau, and Paul Koring of The Globe and Mail” in first position, that would be, I suppose, a proposed amendment to the order, a subtle change in the order of this amendment, that honourable members consider.
I would just say one other thing, Mr. Chairman. If we do this, and if we get to the point that we're going to hear witnesses today on this important matter, the government members, or any member, for that matter, who doesn't have excerpts of this report in front of them...that at the very least we all have the same information in front of us before we hear witnesses today at committee.
That's my suggestion. I indulge all honourable members, in the interest of trying to move this along. I hear the complaints from the other side, but the fact of the matter is that this is an important piece of business. There are, as we've said before, people in the public service whose reputations and whose—
:
Mr. Stanton, thank you very much for your considered comments.
I can't conceive that the meeting will be orderly if members are going to be throwing out suggestions left, right, and centre and asking other members to consider them. We have an amendment in front of us with an order. If you wish to make a subamendment to change the order, such an amendment would be in order.
I remind you, though, that Mr. Koring is not here, although Mr. Esau is here and Professor Attaran is here. If you want to make a subamendment, we'll see whether it's friendly and we'll see whether people are interested in it. If you're just throwing out a suggestion, I'm afraid you'll have to have backroom talks, or whatever the case may be, because I can't just allow people to start making suggestions on the fly.
If members in general think it would be appropriate to have a two-minute or three-minute recess to see whether people could caucus and come to some reasonable conclusion—
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That just happened to be the order. I didn't want to mess it up any worse than it already is, but if that's what we have in front of us....
I would say, though, Mr. Chair, that we still need to keep Mr. Koring on the list, even though he's not here. But if the effect of this is to accommodate the witnesses we have here today, then that's great.
On the second point, Mr. Chairman, I don't know how, but can we just reach a friendly agreement that, whatever copies of this report are in play here today, at least we all have it in front of us? It would just seem to make sense. We're dealing with bits and pieces of everything here and we need to have that in front of us.
:
All right. I want none of the committee members to feel that they've been somehow tricked. Let's try it again.
Would Mr. Stanton be prepared to have the motion amended so that witnesses be heard in the following order: Jeff Esau and Professor Amir Attaran, now; then Paul Koring of The Globe and Mail and the Information Commissioner and other witnesses.
The reason for that suggestion is clear: they're here. We don't want any trickery. We don't want an objection to calling them as witnesses because of anything else. You asked committee members to consider this in good faith. Good faith is rapidly diminishing in this committee, so that's why I'm trying to be clear.
If this subamendment carried, and if the amendment carried, and if the report then carried, then we would go to the witnesses now.
:
I'm being put in the position of trying to broker a deal here, and I'm not comfortable with it. We're dealing with specific motions and specific amendments and subamendments. I'm trying my best to see if we can have some consensus. Every time we get close to consensus, somebody raises something else. I'm not saying it's not legitimate, but I don't know where we're going to go from there.
To try to conclude this, I'll ask the mover of the subamendment if he would be prepared to consider including in his amendment Jocelyne Sabourin before the Information Commissioner. That's something you have to consider, Mr. Stanton. If not, then we can get back to voting.
I think the point is that the fourth report calls for three witnesses. The amendment that has been put forward calls for other witnesses. Admittedly, it did call for them in a specific order. I'm getting the sense that the committee would be happy to have the other witnesses who are put. But the consensus of the committee is that they would like to have the three witnesses that the fourth report identified come first. I think that seems to be what I'm hearing. If we could have some agreement in that regard, fine. If not, then we go back to the actual motion as proposed.
I'm going to ask you, are you prepared to consider that friendly amendment?
But the point was that earlier, when I supported the original amendment, I think it should have gone in a particular order. The question has been presented here today--and the comments that were presented by colleagues--that they need some more information, particularly to deal with what the professor may be presenting, and that giving us that time to the next meeting would allow that to happen. So Mr. Esau is here in the audience with us. It looks like we're prepared to ask him a few questions, but we need some more time to do more work on Professor Attaran.
Obviously my first preference is to have the Information Commissioner first, which is what I put forward first thing in the morning here, earlier, and I think that's the appropriate way to go. But it doesn't seem to be gaining any support here, unfortunately, to do it in a more orderly fashion.
So that is my amendment ,and I'd be happy to hear from any other colleagues on that item.
:
Thank you for that information, Mr. Reid. Neither the clerk nor I were aware of it, and we always invite any witness who is invited to this committee to speak to the clerk or the chair at any time if they're finding things inconvenient or difficult--whatever the case may be--and then we'll ask the committee to deal with it. But I do thank you for that information, for what it's worth.
Can I call the question then, please? The question is on the subamendment moved by Mr. Wallace as follows: that Mr. Reid's amendment be amended after the words “in the following order” by changing the order to read as follows: one, Jeff Esau today, May 17, 2007; two, Professor Amir Attaran at the next meeting of the committee; three, the Information Commissioner...and the remainder of the wording; four, Paul Koring of The Globe and Mail; five, Jocelyne Sabourin, etc.; and, six, the final portion about other witnesses, etc.
Is everybody clear on the subamendment by Mr. Wallace?
I call the vote. I would really appreciate it if everyone would speak into their microphones and let me at least hear the votes because I had some difficulty the last time.
(Subamendment negatived: nays, 6; yeas 5)
Now, I'd like to continue.
An hon. member: Filibuster.
Mr. Dave Van Kesteren: No, I'm going to read this thing. And it would then follow after “report”:
And that the witnesses' statements be taken in camera and that their statements remain confidential until the report is released.
And I've added to that, but I think that that's something we can talk about:
And that the committee has opportunity to examine the study before witness statements are released.
I say that in the spirit of cooperation.... Mr. Martin loves to champion his cause and get on his soapbox and talk about the fact that we are not allowing any secrecy. The very fact that we're debating this in the open is somewhat questionable. In light of that, and if they really want cooperation and if they feel that this is something that needs to be done, we agree, but if they would look at our legitimate concerns...and I believe we have legitimate concerns, I'm absolutely convinced and I know our side does, and I even believe that there are those opposite who would agree with that.
Very quickly, we all want this thing to move forward. We all want to get to the bottom of it. What we find objectionable is the fact that certain witnesses have been lined up so that the initial reporting wouldn't be fair to the government side. It's much the same as a court case in which there is prejudice.
I believe our biggest objection to this whole process is the fact that the very opening is one-sided, and there's evidence to that. There's evidence to that, because at the very time that we decided we were going to steer off from our privacy identification theft and we suddenly changed course, we objected to that as well.
Through the course of objection, it wasn't long before the opposition had the press here. They've taken this opportunity to embarrass the government, and we have not had a fair chance before the evidence has been revealed .
We all agree on the same thing. The biggest objection here is that we have not had ample opportunity to prepare for these witnesses and the fact that they're going to be reporting on something that we have not had a chance to look at.
I think this is a compromise and I think it's a fair compromise. It's my own; I've not had opportunity to talk to my colleagues about this. I think this could possibly be a way to get out of this, and we could go forward.
Did you hear that, Mr. Chair? I didn't think so.
:
is trying to provide some sort of compromise with that concern: that the witnesses be heard at in camera proceedings, that their information be kept confidential until the appropriate time.
You knew that this fourth report would be debated. You knew it because it was not unanimous—you knew I was opposed to it—and yet you insisted on calling these witnesses. I'm saying, sir, with due respect to you, that you shouldn't have done that. You should have waited until this committee approved this report.
—if you're asking me to tie this in—is trying to reach some sort of compromise with this thing, and I congratulate him for it. What he's trying to say, to satisfy some of the arguments that have been put forward by me and others, is that these witnesses are here—they shouldn't have been called today, but they're here—and that we'll hear their testimony in camera, and that such information would be released at a later date.
That's essentially the gist of his amendment, and I think therefore I would support it.
Mr. Chairman, you're going to have to wear the fact, with due respect to you, that you called these witnesses inappropriately. You should have waited until this report was approved. If it was going to be unanimous, you would have had a pretty good indication that it was going to be unanimous. But it was indicated that it wasn't unanimous. You knew there was going to be some dispute. You knew that I, for one, was upset with the report.
I'm sorry to take you on like this, sir, because I think you're doing as good a job as you can under the circumstances. I'm simply saying that is trying to reach some sort of compromise to cooperate with the witnesses so that they can be heard today and not have to go away and come back again. I congratulate him for coming up with that suggestion.
I am, of course, happy to wear what you expect me to wear, because the fourth report calls on the witnesses to be heard today. If we had not called the witnesses or if I had not called the witnesses and the report had passed, the witnesses would not be here, and the report would be irrelevant.
The witnesses were told that there would be a fourth report and that there was a possibility that there would be debate. But it makes no logical sense, given that the fourth report specifies a date upon which to hear witnesses, to then entertain not having those witnesses invited, and then try to pass this report--and if the report is passed, everybody says, “Well, where are the witnesses? We passed the report; Mr. Chairman, you should have invited them.”
In an abundance of caution, we invite the witnesses. If the report passes, we hear from them; if the report doesn't pass, the chairman apologizes for the witnesses being here unnecessarily. That's the rationale, and I'm happy to wear it.
Is there any further debate on the amendment proposed by Mr. Van Kesteren?
Go ahead, Mr. Martin.
:
Thank you, Mr. Chairman.
I think the amendment put forward by Mr. Van Kesteren is fatuous. I think it's frivolous and I think it might even be malicious and vexatious, because it's designed, clearly, to be an obstacle and a barrier to getting down to the business of this committee.
I question his motivation and I challenge it, because he, of all people, should know as a government-side member that the report everybody's making reference to is in the public domain. A stamp on the front page says, “Document released under the Access to Information Act”--a long time ago.
They're the government, Mr. Chair. For them to say we have to delay or even put a shroud of secrecy over the testimony because they haven't seen this document that everybody and their grandmother has read a dozen times--except for the government-side members--is atrocious.
Mr. Chair, this is in the public domain. Everyone should have a copy if they're paying attention to this issue. It's stamped clearly “Document released under the Access to Information Act”--.
:
So I would speak against Mr. Van Kesteren's amendment. I'm embarrassed somewhat that our witnesses have had to witness this debacle here today, but it was the culture of secrecy that allowed corruption to flourish in Ottawa for too long. This government billed themselves as the most open government in history, ever, and now they are trying to put a shroud of secrecy over an issue that they're embarrassed about.
While I have the floor, I will explain a bit about that. What they're really embarrassed about.... I suspect that this filibuster is being orchestrated by the PMO for the following reason: the Minister of Foreign Affairs has stood up a number of times in the House of Commons and denied that their government had any knowledge of maltreatment of detainees during the war, yet this document puts the lie to that statement.
It is not only this document, Mr. Chair; the parallel documents from 2002, 2003, 2004, 2005, and now 2006 all caution the Government of Canada that extrajudicial executions, disappearances, torture, and detention without trial are taking place among detainees in Afghanistan, and then they deny the existence of these reports. Well, we have these reports here, and we have people who are willing to give sworn testimony as to the nature of the reports and the fact that the Government of Canada told them these reports didn't exist. This is a bombshell, Mr. Chair, and that's what they're trying to avoid--embarrassment to themselves.
Without even getting into what was censored and what was not censored from the documents, the fact that they denied the existence of these documents is, in and of itself, staggering in its dimensions. With a straight face Mr. Van Kesteren and all these guys are trying to throw obstacles in the way of our committee in doing our work.
I resent it profoundly as a member of Parliament. The general public is watching this. They are running roughshod over the democratic process--not only at this committee but also, as I said, at two other committees at this very same time. All over Parliament Hill democracy is being ground to a halt.
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This amendment should be voted down on the basis that it is a thinly veiled ruse to avoid the truth from breaking through and to avoid embarrassment. What they're really trying to do, Mr. Chair, by this amendment is stall and delay, hoping they will wear us down, because in two or three more meetings this Parliament will adjourn or even prorogue and this issue could be swept under the rug forever.
We have a responsibility as the freedom of information committee to ensure that does not happen. We have a profound duty. I firmly believe this is one of the most important committees in Parliament. It is a new committee. Its mandate was misunderstood and perhaps it was vague and people didn't pay too much attention to what we were doing, but freedom of information is a cornerstone of our democracy. It's fundamental and it's quasi-judicial in its importance.
Here we have the most egregious violation of the freedom of information laws in this country in history, that I've been made aware of. It is so rare to see the redacted version and compare it with the uncensored version and see just what they're eliminating. It is so rare for the government to be caught so bald-facedly denying the existence of a document. This government is clumsy in the way they treat these access to information requests.
I don't know how much longer we're going to tolerate the mischief, but it's a filibuster plain and simple, and I fully respect the right--
That was quite a dissertation by my honourable colleague. These were all baseless allegations. He talks in terms of upholding the important ethics and the mandate that we have been given as a committee. Mr. Chair, as I looked at the very mandate of this committee, I see we are the one committee that has to uphold those important aspects of ethics, being able to address and monitor, in fact, access to information as it relates to public office holders and the job of ensuring that access to information is provided.
The point is that Mr. Martin's allegations here are groundless. In fact, he's speaking to the point of potentially bringing insinuation on important departments of the federal government. His point is that there are departments.... We've heard significant testimony that has said it's the access to information departments that actually go through the motions of providing information that has been requested of them. They make the decisions about how that information is put forward. That process has been followed. The subject of debate here is to whether it has been followed properly.
The point of the matter here is that because of the spectacle the opposition has made of this whole process, we are taking our time to make sure this committee.... We're delving into potential issues around legality, around people's jobs and important positions in the public service, so we need to be careful. I would support my colleague Mr. Van Kesteren's motion for this reason.
My colleague across the way here in opposition suggested some shroud of secrecy. Look, all we're talking about with Mr. Van Kesteren's motion is that for the time being, and despite these suggestions that there are somehow excerpts of this report floating out in Internet space, if you will, we still don't have the darn report in front of us.
We're saying now that we're going to get this report tomorrow at Friday noon. We could have testimony here today, and Mr. Chair, correct me if I'm wrong, but I understand that when we have testimony in camera, once this threshold that has been proposed by Mr. Van Kesteren is met--and I think it's a sensible one--that the testimony provided is done in camera and we then have the information in our hands, that testimony in camera would become available. It becomes available to the public once we carry on as a committee.
This is in the same fashion, Mr. Chair, as you would undertake when we're in committee, for example, and we're considering a report. We've gone on, in some cases, for several meetings all in camera. Once the report is tabled in the House of Commons, all of the information, as I understand, that was part of those considerations becomes public, as it rightfully should.
So this nonsense about a shroud of secrecy is merely words--I was going to say words on a page--offered here in committee. It's nothing much more than editorializing, because we're talking here, Mr. Chair, about 24 hours. This time tomorrow we will have that report. Mr. Van Kesteren's proposal allows us to move ahead. I suggest that we take it in the spirit of goodwill with which it's been provided, and I support his rightful suggestion that we do just that and hear the witnesses who have come before us today.
:
Thank you, Mr. Stanton.
I have a point of information for the committee, because Mr. Stanton used the example of our deliberations with respect to PIPEDA.
Our deliberations with respect to PIPEDA are in camera and they are never made public. The evidence of the witnesses, of course, was public from the beginning and we haven't had a circumstance yet in this committee, while I've been chair, when we've agreed to hear witnesses' evidence in camera and then to release it later. That's not to say it can't be done. I just want you to be clear that the deliberations that a committee takes in deciding the form of its report are not made public, generally. It has happened, but it's only when a committee decides that it will do so. That's just a point of information.
The other point is, as I mentioned before to Mr. Van Kesteren, that the latter portion of his amendment could be seen to be indefinite, virtually. That may not be the intent. So there may be some suggestion that there be some definitiveness to it. Perhaps members could, in their own minds, address this: if the report were to be received by the committee in both official languages on Friday, what would the mover have intended? When would the in camera evidence be made available? For example, would it then be made available at the next meeting of the committee? Or was the mover's intention then to get into a debate about the actual report and not be able to release the in camera evidence until the committee made a decision with respect to that particular report?
So I'm merely pointing out that there's some different and possible interpretations of the mover's motion and I just want members to be clear that this at least is out there. But I did want Mr. Stanton to know that we do not release the deliberations that we ourselves undertake when we're doing a committee report. Those remain private.
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You currently stated, Mr. Chairman, that, in committee, anything was possible as long as it is legal. Now, games are being played, and I must admit that I don't have a great deal of talent in that field. People are acting like clowns and are introducing one amendment or subamendment after another.
Furthermore, in the last amendment submitted by the Conservatives, clearly to filibuster, we find the words "in camera", "confidential" and "secret". From a government that claims to be transparent and to be applying the Accountability Act, it sounds like dirty words, if I may say so.
Mr. Chairman, Mr. Tilson criticized you earlier for having called witnesses this morning. You will get no criticism from me. The motion I introduced was passed by the majority. According to that motion, the committee should immediately consider this issue. That is what you are doing and you have done it well. I thought that this morning was already a little too late, but I may be in a bigger hurry than the others.
Furthermore, when the steering committee met, the majority agreed on the report. Once again, you did a good job. The secrecy, the in camera meetings, the confidential information and the kind of filibustering that we are seeing now from the Conservative members are quite typical of a government that has things to hide. This kind of situation always leads us to discover major scandals.
I am not going to draw a parallel with other scandals: I think that the members of this old Conservative government know what I'm talking about. I am saying "old Conservative government" not only because it's been in power for more than a year and a half—and I think that it's starting to be quite a long time—but also because it's old in terms of its behaviour and the way it wants to hide information from the public. This is unacceptable.
Mr. Chairman, we are here in the Standing Committee on Access to Information, Privacy and Ethics. It's quite ironic to see that Mr. Van Kesteren's amendment goes against access to information and the disclosure of information, and asks for in camera meetings and for some information to be kept secret. I too am going to start to use big words: it's unacceptable; it's censorship.
For all those reasons, Mr. Chairman, I will be voting against this amendment and I would like to do so as soon as possible so that we can hear from the witnesses who are here in this room. They're waiting to testify. We have invited them. This was a decision made by the majority here, in the committee, and the steering committee. If the Conservative members are serious, they will stop playing games. Then we can invite our witnesses to testify.
:
Mr. Chair, I just heard a volley of charges from Madam Lavallée, and I feel I should be able to answer some of those charges. I will address my motion, sir, because I think my motion will be tightened up. I hope Madam Lavallée is listening, because I listened to her, and I hope she listens to me.
This is a sincere outreach to come to a compromise. I will adjust my motion. The motion should read that when we have an opportunity to read it...and that would be, by the sounds of things, 24 hours. The reason is this. We've heard a multitude of charges of secrecy and hiding the facts, and Mr. Martin has just had a grand old time....
I'd like to remind members across, again, that we were right in the process of another study, a very important study, and while we had witnesses there, cameras were brought in. We thought that it was because of the witness we had. But no, lo and behold, Mr. Peterson brought in the CBC because the Information Commissioner was going to be there and there'd just been a report in The Globe and Mail.
You want to talk about abuse. That was abuse of the system, just a spectacle. That's exactly what it was. So obviously—
:
Yes, sir. And the whole session was devoted to nothing other than just trying to embarrass the government. Yes, we're very sensitive about those things, and we ought to be. We've not had a proper opportunity to investigate these things.
Now, if we didn't want to compromise, we would not make this proposal. This is a simple proposal. I have to think that members opposite.... As I said to Mr. Martin, it's like waiting one day, and your birthday's tomorrow. It's one more sleep. You can hang on. Just give us that opportunity to look at this report, which we have not had opportunity to look at.
We're having witnesses who are going to deal with that report before we've even had a chance to look at it. That's just common courtesy. If you're really interested in cooperation between governments, and I think that's what we're talking about, forget the secrecy stuff. We're going to find out, Mr. Martin, what happened here.
On the government side, we don't want to have a report coming out that is totally biased to this report. So give us that simple opportunity to look at that report. That's the compromise that I'm presenting you with. It's a compromise. We can get out of here or we can sit here all night and keep chattering about nothing.
To wrap up, I'm prepared to say—and Mr. Chair, I leave it to the clerk to do that properly, and if it's acceptable to members opposite—that if we are given opportunity to look at that report, which is coming out tomorrow, I think that's a fair compromise.
Thank you, Mr. Chair.
I usually don't take the floor, Mr. Tilson. If you can give me just a few seconds to talk, I'm very respectful to you any time you speak.
We do not have that report, and never have either. We have shown the documents we had to Mr. Reid. I'm sure he will agree that this report, 2006...whatever this report is, we don't have access to that either.
Personally, I feel we should go ahead and listen to these witnesses even if it's public. Let's be open and transparent. Big deal. If we have nothing to hide, we should be as open and as transparent as possible.
The other thing I want to do is this, and I don't know if I have to make a motion, but it seems as if it's becoming a tradition for this meeting to be this long every week. Why don't we just change the time from nine to eleven o'clock or, with the consent of all the members, from nine to maybe two o'clock, or even eight o'clock in the evening, so we don't have to change the room every week. This is what I would like to say.
I would urge all members, let's get on with this important task we have in front of us, and be open and transparent to the public and listen to those two witnesses we have today.
I have three very specific comments I want to make, all of which I think are very strictly relevant to the question before us, the amendment that's been proposed by Mr. Van Kesteren.
And in saying this, I am simply responding to comments made by other committee members, because I know you're anxious to make sure we stay relevant here. When people say things in the committee, we're all speaking with the intention of trying to cause others to consider voting the way that we are leaning towards voting. Therefore, it's important for me, if I hear something that I think was incorrectly stated, to set the record straight, and this is what I'm trying to do in my first comment.
Mr. Martin, in his comment, said this is a public document; these guys are members of the government; they have access to it; they've had access to this stuff, I think he said, for a week. I understand why he might think that, but actually there are several misstatements, or errors, in that.
One is that we're actually not members of the government. We are members of the Conservative Party. We certainly support the government, but in terms of actually being office holders, sworn in, that sort of thing.... A lot of committees have parliamentary secretaries, and this is an exception, so--
An hon. member: No, it's not.
:
All right. That's the first thing.
In terms of being a public document, when a document is no longer secret, it doesn't mean that it's then posted on a website or made readily available in that way. Having been a researcher in a former life, and I actually employ a researcher as well right now, when we hear about documents that are public and are of interest, we regularly make an effort to pursue them. That doesn't happen immediately. We have to go through all the same channels as everybody else. We do not necessarily immediately find these things coming to us.
On the assumption that we've all had the document and therefore we're all thoroughly apprised and can ask fulsome questions of the witnesses, in saying this, I think Mr. Martin is labouring under a misapprehension. I just want to draw that to the attention of all members, including Mr. Martin, so they'd be aware that while I'm sure it was meant sincerely, it's actually factually incorrect.
The second item does relate to the idea that the report, which is going to come in, will then release the testimony we've heard here. If I understand this correctly, I think there's a bit of a problem with this. Although Mr. Van Kesteren ran the idea by me before he introduced it, now that I'm thinking about it, there may be a problem here.
The purpose, I think, of having the redacted, translated version of the document is, I assume primarily--maybe there are other reasons--to allow us to engage in fulsome questioning of the witnesses so we can look down and see what's being discussed and what's in the report. That can't happen because the report is happening tomorrow and the witnesses are here today. So we actually got things backwards. We would make the information public in, more or less, 24 hours from now, but it wouldn't actually assist us in that particular task. I might be wrong. There might be another reason for doing this.
The only other reason I could think of--and this is my third point, Mr. Chair--was that if we receive the documents tomorrow in both official languages, they become available to us then. In terms of the general public, our friends in the media and so on, is there anything that prohibits any of us at that point, if we contact the clerk, from taking the documents and using them in a forum outside of the confines of this committee in order to give context to our comments and remarks and responses that inevitably we'd presumably be asked to make with regard to the substance of what the witnesses had said, which would become public at the same time? Would we actually have access to those for that purpose?
That's a question, but I think it's relevant to the motion.
:
I would point out, Mr. Chairman, that this document is readily available, from the access to information coordinator of Foreign Affairs, to anyone who wants it. I'm surprised the government side MPs would be so slow to avail themselves of it, but once a document has been stamped for release and approved and redacted so that it's in the form the government wants, it is quite readily available. It's a 105-page document, or a 46-megabyte file that can be downloaded with the permission of the DFAIT coordinator.
Even though none of you are cabinet ministers, you're the government side, for God's sake. Surely you have some better access to this document.
People were first made aware of the existence of the document in the Report of the Events Relating to Maher Arar. When that report was circulated, it made reference to the “Afghanistan 2006: Good Governance, Democratic Development and Human Rights” document, on page 237, I think. Researchers from the university and other journalists, I presume, said, that sounds interesting; they're making reference to the state of detainees and the use of torture, and are making a human rights report that's circulated annually. It didn't take a rocket scientist to say they'd like to see that report, so the applications for the release of it went in. I think we'll hear detailed testimony on how that went when we get to hear these witnesses.
What I'd say to , if he was still interested or was listening, is that we don't really need to analyze the merits of what was censored and what was not censored, or if it should have been or not. Really, today's question, and the reason these witnesses are before us, is that we want to talk about the administration of the Access to Information Act as it pertains to this document. Why did they deny the existence of a document that was referenced in the Maher Arar report? Why did they deny the existence of a document that had been published and given to government in 2002, 2003, 2004, 2005, and 2006? That was the first reaction of the ATIP coordinator: to deny that any such documents exist. Frankly, I believe that is enough for this committee to be satisfied that it's a justifiable matter to investigate, even without the report.
I argue that the report would be freely available to if he goes down and gets it from his own government officials. But even if it weren't, there's valuable work that this committee could be doing in questioning these witnesses on their experience in dealing with our freedom of information laws, the frustrations they encountered, and what drove them and motivated them to file complaints to the Information Commissioner on those grounds.
Whatever we're debating in terms of amendment now, dealing with the distribution of the document, should be voted down and we should vote in favour of the main motion, which is concurrence in the fourth report of the subcommittee, the planning committee of the access to information committee.
:
Thank you, Mr. Chairman.
Mr. Chairman, we're now discussing the actual report itself. I think it's no secret by now that I have reservations about this, for a variety of reasons. I don't intend to go through them all over again. Indeed, I don't propose to make any further amendments. I do think this was not handled by a process that I would have approved of in advance had I known it was going to be this way. I don't think we've had a proper opportunity to prepare ourselves. I don't think we'll be nearly as fulsome as we could be in our discussion with the witnesses. I don't think we have adequate documentation at our disposal.
Having said that, however, my colleagues and I have tried several times to introduce proposals that would bring some order to this, that would, as I indicated, not turn this into a court of star chamber, which is what I am afraid it might become. Those are my objections.
I've seen no evidence that anything we say is going to change that. It would simply mean we'd come to the same wrong conclusion at a later point in time. That would be disrespectful to everybody here. Therefore, I am not proposing any further changes to the report. I would encourage my colleagues on this side to do the same and allow us simply to go directly to a vote on the motion.
:
The fourth report of the subcommittee on agenda and procedure is concurred in.
Consequently, we move to the second item on the orders of the day. That item is the witnesses that we have here, so I would invite Messrs. Esau and Attaran to come to the witness area.
While they're doing so, I'll make this comment. Given today's experience, I think what we'll try to do from here on in, when we're discussing further items of committee business, etc.—unless I'm overruled—is not go to a subcommittee, but deal with these matters in full committee. We can then decide whether we want to go in camera or not. Everybody will have their kick at the cat, and then, whatever the decision of the committee is for future business, it will be that way. We'll give that a try and see if it works. If it doesn't, we can always go back to the subcommittee and we can be creative as well.
How are you doing there, Mr. Esau? Are you ready to go?
:
I will. Thank you very much, Mr. Chair. Yes, it has been mildly entertaining.
I appreciate the opportunity to speak. I know there has been a lot of interest in just who I am. I can assure the committee that I have written an article since November 12 or whatever date was cited earlier. The thing I need to make clear is that I'm a freelance writer. That means two things.
The first thing is that I am not an employee of or affiliated with any particular news outlet or journal. The word “freelance” means just that: I work on an article-to-article basis.
The second thing about being freelance is that I'm probably the only person in the room today who is not being paid to be here, so I'm not beholden to anybody. I have no political affiliations. I have no other organizational affiliations. I'm a journalist.
I came to journalism partly out of necessity. I was a serving officer in the Canadian Forces for 16 years. I retired at the rank of major and had to leave the military as the result of a service-related injury.
The reason I feel that's relevant is that for three years while I was serving in the military, I was the policy and training officer for National Defence, for access to information and privacy matters. In other words, I was one of the main advisers to the associate deputy minister, the director of access to information and privacy, and people with stars on their shoulders about access to information and privacy matters. For three years running, I was the one who prepared the annual report that comes to Parliament from National Defence, so I have a little bit of background in access to information and privacy. I've given lectures on it. I know it at a very good expert level, I would say, and I have used the act in my journalistic endeavours in order to obtain source documents that I feel are relevant to stories I'm writing.
My particular interest is in military and foreign affairs, partly because I feel the Canadian public is woefully uninformed about those important public policy areas. I feel it's appropriate that I tell that story, or be one of the people who tell that story. In order to do that, I need source documents from the government, and the only legal recourse I have to do that is the Access to Information Act.
So that's a little bit about my background.
My relationship with The Globe and Mail is not an employer–employee relationship. The Globe and Mail has retained me for a fee to conduct, on their behalf, research into matters they feel are germane and within my expertise. In the case of detainees, torture, and Afghanistan, those areas are consistent with my background and expertise, and that's why I agreed to take them on.
That's pretty well all I need to say about myself. I'm certainly willing to answer any questions people may have about my qualifications, my past writing, or my military service. I'd be happy to take those questions or any other questions you have.
:
Yes. One of the things I'd like to make clear is that I have never seen the redacted version of that document. I have never received anything from the Department of Foreign Affairs and International Trade. I have not received it from anybody in the room or outside the room. And I have never seen a copy of the uncensored report.
I just want to make it clear that I'm not coming here with any preconceptions about what may be in the report. When I get if officially, I will analyze it and I will report back to the people who have retained me.
My involvement in this particular series of events started when I was asked to inquire within Foreign Affairs about a specific report that was produced--allegedly produced at that time, because I take nothing at face value. And I was going to explore whether or not that document existed, and if it existed, get hold of it and basically do an analysis of it and write a story about it or contribute to stories about that document and the larger context in which it involved the Canadian Forces and the three-D approach that's being used in Afghanistan.
This is one of the misconceptions that I've heard today. I made two requests, and I'm going to read the wording of the requests into the record so that there's no ambiguity about that. In my first request that I sent in, which was received by the Department of Foreign Affairs and International Trade on March 14, 2007, I requested “A copy of DFAIT's 2005-06 annual or semi-annual report or the 2006-07, if it's been drafted, on human rights performance in countries around the world.” That was the request.
One week later, approximately a week later, I received a letter--on March 22. It was not signed by Jocelyne Sabourin; it was signed on her behalf by somebody, and I was told in the letter, “Please be advised that Canada does not produce an annual human rights report analogous to reports produced by, for example, the United States or the United Kingdom. Therefore no such report on human rights performance in other countries exists.”
:
Yes, I received that in English only. That's my first language. I don't have a second language, although I was raised in Newfoundland, so I guess that's sort of another language.
In any event, I was not satisfied with that answer. I had reason to believe, from sources that I keep confidential, that a report about Afghanistan in particular, among other countries, did exist. I pursued this with the officer who was responsible for this file. After I received this response, I went back to her in a series of e-mail traffic that I can provide to the clerk. I wanted to make sure she wasn't saying something didn't exist based on an unsympathetic reading of my request.
The Treasury Board guidelines that help access to information coordinators respond to requests give guidance on how to treat requesters. I reminded her of that, and I quoted it to her. I just said:
If the records do exist but I failed to use the precise title of the reports, please let me know. In other words, I'm hearing from other sources that DFAIT does in fact produce human rights reports and I just want to confirm DFAIT's position on this, that human rights reports DO NOT exist and that my request was not interpreted with undue narrowness by DFAIT. I want to be very clear on this.
She wrote back, saying, “We feel that we've answered the letter of your request.”
I then went back to her and said, “I'm assuming that there is some type of report produced by somebody, somewhere in DFAIT about issues concerning Afghanistan?” I then quoted the report “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”, and stated that I felt this was a chapter in a larger document. I wasn't sure, but I said: “My understanding is that this document or chapter or section or case study or whatever you want to call it exists, and if, by calling it annual or semi-annual I misled you, please be disabused of that.”
She said she would do some digging and get back to me. I'm presuming that what she did was go back to the people who would have produced the document that I quoted, the record holders. She basically came back and said that DFAIT only produces reports on a “situational basis”.
I wrote an e-mail back to her confirming the points that she had given to me over the phone: that these situational reports deal with one country at a time, and that it would take more than a hundred hours of search time to obtain all these individual reports that were produced in one year. For a researcher, a hundred hours translates into ten dollars an hour, so what they were asking for was a thousand dollars to find the reports, which for a private citizen is very steep—and the fees are something I can answer questions about.
She confirmed that I was correct in all the points that I had made back to her. That's when I felt I had battled the department to a standstill on this one, and that they were not, even with egging on and gentle persuading and prodding, willing to come out and say what they had and that I should pick what I wanted.
Because I never like to be caught up the creek without an ATI request, I had simultaneously submitted another request at the same time as I had submitted the one I've just spoken about. This one was for “a copy of the latest assessment by DFAIT of the human rights practices, compliance, and performance of Afghanistan”. That's pretty direct. It's pretty specific. In the event that they were not able to interpret this in an appropriate way, this was the second thing I sent in.
They received that request on March 13, which was the day before they received the one I spoke about just a few minutes ago. I have not received an answer to this request. What I got back was a letter saying they had received it, but that they were going to need an extension of 90 days beyond the 30-day statutory time limit. That means that instead of giving me a response on April 13, which would have been 30 days, they needed three months after April 13. I found that interesting, given the fact that by this point redacted versions of it were appearing in the newspaper.
I got a call late yesterday afternoon, because I had asked about the status of my request. I was told it was being sent to me post-haste, but I haven't received it yet. I still have not received a formal response from DFAIT on this second request.
That status inquiry was not signed by Madame Sabourin either. It was signed on her behalf by somebody whose signature I can't read.
So that's how I became involved. At each point that I had communications with the department, I basically went back to the people who retained me and told them what I was getting and what I had said, because I needed them to have all the facts. At one point, we agreed that I would be submitting a complaint to the Information Commissioner.
I don't submit such a complaint lightly, because having worked in the ATIP world, I know that a complaint just takes up the time of the people who are supposed to be working on the requests. If you flood or inundate a department with complaints that are really not something you want badly, you're just bunging up the system, as it were.
In this case, I felt a complaint to the Information Commissioner was in order, and I wrote one on April 26, within the sixty-day allowable time limit. I basically said that I felt the department had inappropriately and wrongfully and knowingly withheld a document that I was after, and that the relevant records did exist and they knew they existed.
That's my allegation. That's my contention, my personal belief as expressed to the Information Commissioner. I'm willing to share that. This is normally confidential correspondence between me or any person and the Information Commissioner, but that's what the wording of that is, so that people understand.
:
No, she was an ATIP officer, Francine Archambault, who works within the access to information and privacy directorate.
The other thing I want to make very clear is that, having submitted hundreds and hundreds of requests to many federal institutions over a number of years, as well as having been on the other side of the table as a serving uniformed officer, it has been my experience that the ATIP organization within a federal institution is extremely anxious to please a requester. Their goal, in virtually every case of which I'm aware, is to provide to the requester the documents that the requester wants. They want to serve their clients.
The difficulty, the dynamic that I have found within National Defence and in other federal institutions—especially the large, highly publicly visible ones—is that the ATIP people have to go to the individuals within the department who actually hold the records. Getting the records from the people who create them or hold them is a challenge for anybody in ATIP. So when I gave this e-mail to the Information Commissioner, it was made very clear that Ms. Archambault was going back to find out other things from the people who held the records, and that these things formed the basis of her responses to me.
Ladies and gentlemen of the committee, thank you for making it possible to hear from both of us today, despite your considerable differences.
[Translation]
I want to thank you for giving me the opportunity to speak to you today and testify, which I will unfortunately be doing in English.
[English]
The reason I have come to address you on this point will be, I think, fairly obvious from my background. I am a professor and Canada research chair at the University of Ottawa, jointly appointed to the schools of law and medicine. I work in the areas of human rights law, global development, and population health, across that spectrum of issues. I'm trained both as a lawyer in Canada and as a scientist, which was my Ph.D. subject at Oxford University. Prior to coming to the University of Ottawa to take up a faculty position in Canada, my previous two faculty positions were at Harvard and Yale.
The reason I chose to come back to Canada was that, on an ethical plane, I felt very strongly about the preservation of human rights and how this country, which is so exemplary in its rule of law, actually can contribute a great deal to the world in the maintenance of human rights standards. That is very much why I came back to this country and tried to reverse the brain drain.
At the outset of these comments, I'd like to make an observation on the business that has been done in this committee today. There have been a lot of objections—I won't go into any specific ones—about the injustice of parliamentary procedure and the injustice of this motion or that amendment. I'd like us all to remember that the actual injustice is torture, extrajudicial killing, and disappearance in Afghanistan. Those are the human rights issues, and believe me, torture is a greater injustice than any breach of parliamentary procedure, and so is being murdered.
The reason we're here today is because of a report—and I have here the redacted version that was given to me under ATI—about human rights in Afghanistan. It is terribly important—and I say this to all parties—that no time be wasted on wrangling of a filibuster or other nature, and that what this committee must concern itself with is why information in the possession of the Canadian government about torture, extrajudicial execution, and disappearance was concealed. It is obviously the case that only by having that information in the possession of the Canadian government out in the sphere of public debate can the situation be improved. I don't want to put too sharp a point on it, but the longer the document is not public, the less that is known about it, and the less debate that can therefore take place on these issues, the longer the people's lives are in danger. They could be killed or they could be tortured, so it is terribly important for this committee to move ahead.
Having just scolded you in those friendly terms, let me tell you what happened with my access to information request. I'll present this information chronologically. If there are any questions about the chronology, Mr. Chairman, please feel free to interrupt me.
The documents from which I'm taking this chronology have been faxed to the clerk. If I refer to something that is not in his possession, however, I would ask the clerk to note it to me so that I can provide it if I have erred and have not provided it already.
On January 24, 2007, I filed an access to information request with the Department of Foreign Affairs.
:
On January 24, 2007, I filed a request under the Access to Information Act to the Department of Foreign Affairs and International Trade, requesting copies of the country's human rights reports for Afghanistan and the United States, two countries. I explicitly noted in my request my knowledge that such reports do exist. An example of one report of this kind is contained in the factual background of the commission of inquiry in relation to Maher Arar. On page 237 of that report, it's mentioned and footnoted that DFAIT has a Syria human rights report.
Those of us who work in the human rights field know that these reports exist. It's certainly not controversial that they exist. They're even cited in the Arar commission report.
So I did, on January 24, request the reports for both Afghanistan and the United States. I mentioned in my request that I was aware that the reports would exist, in accordance with the example found in the Arar commission report. This would seem to fly in the face of what Mr. Esau was told: that human rights reports are only prepared by DFAIT on a “situational basis”.
On February 5, my information request was acknowledged by Jennifer Nixon of DFAIT. Her acknowledgement letter indicated that I would receive an answer on my request within 30 days of the date that DFAIT received it. I've done a quick job of counting the days, and I believe it was on March 1 that I should have received my information from DFAIT.
On March 1, I had not received the information, contrary to DFAIT's written undertaking to deliver the information within 30 days. DFAIT did not take an extension under the act. It did let its own timeline, the legal timeline, lapse illegally.
On March 29, I filed the second access to information request. This time, and because DFAIT had already illegally failed to deliver information at this stage, I requested the report by its exact title. That title is “Afghanistan–2006: Good Governance, Democratic Development and Human Rights”.
My second access request to DFAIT, the one of March 29, did explicitly mention the title of the document that I sought. By inserting the title, I hoped to avoid a situation in which DFAIT would inform me, as it informed Mr. Esau, that no such report existed. I was well aware that Mr. Esau had not been told the truth on this matter.
Also around this time, in late March or early April—I cannot be more precise—I instructed my assistant at the university to phone DFAIT every day, and often more than once a day, to secure an opportunity when I could speak with Ms. Jennifer Nixon, who had corresponded with me on February 5 about my access request. My secretary tried to make this phone call happen for well over a week, and DFAIT refused to take the call.
On April 4, I complained to the Information Commissioner about my January 24 request that was now seriously overdue. As I wrote to the commissioner, “DFAIT has failed to advise me on this file as it promised. DFAIT has failed to divulge the requested information. DFAIT has failed to cite any lawful exemption under the act for refusing access. DFAIT failed to take a lawful extension of time under the act.”
On April 11, after the matter had now been escalated to the level of a complaint with the Information Commissioner, I received a telephone message from Gary Switzer, an employee at DFAIT who is responsible for access to information. I subsequently called him back shortly thereafter—I believe it was a few days—and I asked him what the delivery date for my information would be. He declined to provide one; he said he could not provide one. I pointed out to him that under the access law, he is required to have a delivery date, which, by the way, DFAIT had already breached.
Mr. Switzer again refused to give me a delivery date. He mentioned that the document needed “review” by somebody other than him. He mentioned that the document was on his desk, that he was reviewing it himself, and that he would then have to send it to someone else to be reviewed. I asked him who was going to review the document. He declined to answer me, but it was certainly established in that conversation that the officer for access to information charged with my file at that date, Mr. Gary Switzer, did intend—and in fact later did—submit the document to somebody unknown for review. I asked Mr. Switzer if this was a sign of political interference. He declined to answer.
On April 17, I had a telephone conversation with Jocelyne Sabourin, who is, as I understand it, the top official for access to information in DFAIT. She agreed to take over the file from Mr. Switzer and to manage it herself, and she agreed to deliver the document in a matter of days. In fact, disclosure was made, on April 23, of the 2002, 2003, 2004, 2005, and 2006 Afghanistan reports. This disclosure was given to me as an electronic file on a compact disc. When I looked at it, I found that for the 2006 report—I shall confine my comments from here on in to the 2006 report, but the ones from the earlier years were quite similar—subsection 15(1) of the act was used very heavily to censor the document. Other parts of the act were used, but subsection 15(1) was the one used the most frequently by far.
DFAIT did not and has not indicated which paragraph of subsection 15(1) applies. There are nine paragraphs to that law. Although DFAIT is required to be exact about which exemption it's applying, it has never indicated, in that precision, which of the nine exemptions it is using.
:
The U.S. report was never released—and you will recall that I did ask for the U.S. report, as well as the Afghan report—nor was anything said about why it was not released.
I find it curious that the exemptions were applied so heavily throughout the Afghan document. There's nothing secret here. The sections that have been cut in the first paragraph and which The Globe and Mail subsequently published refer to torture being “all too common in Afghanistan”, according to DFAIT. The U.S. Department of State has said there are “credible reports of torture”. The UN High Commissioner for Human Rights, who is none other than Louise Arbour, a former Justice of the Supreme Court in this country, has said torture is “routine”. The Afghanistan Independent Human Rights Commission has said torture is “common”. This is very similar to saying that torture is “all too common”, as the Department of Foreign Affairs has written in the 2006 human rights report. Nothing appears to be secret enough about that revelation to justify using subsection 15(1) of the Access to Information Act to withhold it, except, of course, if that section were being abused, which I believe is the case.
There does seem to be a systematic problem within the Department of Foreign Affairs and International Trade about denying torture, about not confronting it openly. Again I refer to the Arar commission report. A DFAIT employee, Mr. Ambassador Pillarella, at the time Mr. Arar was being tortured, wrote in an e-mail that “a meeting with Arar should help us to rebut the recent charges of torture.”
Ladies and gentlemen, there is a blind spot in the Department of Foreign Affairs about torture, which means they don't want to know. I suspect that cultural reality of the department has something to do with why any reference to torture or other abuses was cut out of this document even though it really isn't a secret that torture goes on in Afghanistan, by those corroborating references I've given you.
It's further curious to me that the title of this document contains the words “Democratic Development”, among other things. That is, of course, a reason for Canada's presence in Afghanistan: to contribute to democratic development. It does seem to me that the information about democratic development that the Government of Canada possesses ought to be laid on the table for all to see.
I have no objection to this committee looking into this matter. In fact, I ask you to please do it. I say that as the person who has complained to the Information Commissioner. I've heard it said by members of the committee that the committee shouldn't act while the commissioner's investigation is under way. I disagree. As the person who brought the matter to the commissioner, I would be very pleased if this committee were to take its business up concomitantly and not wait for the commissioner to conclude.
I also would like to raise the point that there seems to be here, in this set of events as I've just described them, a pattern of concealing the 2006 and earlier Afghan human rights reports, and possibly concealing the U.S. human rights reports. If so, that is a criminal matter under section 67.1 of the Access to Information Act. To conceal a record is a criminal offence. I'm not making an allegation against anyone personally. I do not know who might have been involved in such concealment, although I do believe the circumstances show that it has possibly happened and there is need for a criminal investigation.
I would recommend, as a further step, that the RCMP and the Director of Public Prosecutions be involved at this stage to investigate whether any persons, be they civil servants or political figures, were involved in concealing information arising out of my request. I won't say to include Mr. Esau's request, because that's up to him, but I think the three or four requests together—I've lost count—do show a constellation of facts that indicate concealment went on.
I'll end my comments there, Mr. Chairman, with thanks for giving me the extra few minutes.
:
If that's the case, I'm going to go to the other question on which I should probably comment here.
Mr. Attaran, you are on record as saying this government has been very slow to react to any concerns about Afghanistan detainees. You said it took nearly one year to correct 's falsehood that the International Committee of Red Cross, the ICRC, was monitoring the treatment of Canada's detainees while they were in Afghanistan's custody. You have made it clear for Canadians—and I appreciate your work on this—that the ICRC normally keeps the results of its inspections confidential, except for sharing them with the detaining power. In this case, that would be Afghanistan.
We also know the ICRC has a long history of questionable decisions about confidentiality. It did not even publicly denounce the various abuses of Nazi concentration camps, and it did not denounce the use of torture in Guantanamo Bay until these crimes against the Geneva Convention became known through other avenues. You would expect other avenues to include our very own government.
I wonder if you would tell us if you have tried to have a dialogue with the government and about your difficulties, and how cooperative you have found and his department.
:
The question does take me somewhat out of the subject of the 2006 human rights report, but insofar as your question asks whether I have observed a pattern under which information about Afghanistan and/or detainees is not easily available, my answer would be yes.
I have another access to information request pending with CIDA, about international development projects it's undertaking in Afghanistan. That request has been pending for 11 months and is not completely answered. I have numerous other requests that are out of time as well.
It has certainly been the case that in the last few months the civil servants responsible for access to information have become very much less willing than they were in the past either to discuss the progress of files or to release documents. I can't tell you exactly how many because I don't know off the top of my head, but I have several complaints pending with the Information Commissioner on the subject of Afghanistan right now.
There is a systematic problem getting information out on Afghanistan. It is subject to the most extraordinary delays and, I believe, illegal withholdings.
:
I think my experience reveals two things. First of all, anybody in the public service, at any level, who creates documents and reviews them in the course of their work thinks their work is important and that, because it's important, it must be secret. Amongst people who create and hold records, I think there's a tendency to overstate the import of those documents to be released.
What I'm saying is that subsection 15(1), which Professor Attaran was talking about, is a section of the Access to Information Act that's very broad. It allows the government basically to withhold any information that would be, if it were disclosed, “injurious to the conduct of international affairs” or the preservation of national security. When you really think about that, it means that anything withheld under subsection 15(1) has to be virtually a state secret. Otherwise, you are overstating the sensitivity of the information. I think that's the first thing.
The second thing is much more issue specific, if I'm hearing your question correctly. My sources within the government—and I'm speaking as a journalist—say there is a chill going through major departments right now on issues surrounding torture, detainees, and Afghanistan. There is a very obvious reluctance for anybody to talk about it. In some departments, my sources tell me, special teams have been formed in order to deal with certain requests that relate to detainees, and these requests are specially treated.
So those are two things that I think are at work. When you talk about stonewalling, I'm not sure it's a cold-blooded case of their saying they're going to do this. I think it's more that part of it is a human tendency to overstate the importance of the documents that somebody works on, and then, when somebody else asks for them, to say that this second person can't have them because the defence of Canada or our international reputation rides on the e-mails sent to colleagues by the first person.
I looked very quickly at some of the copies of this report that were redacted and that we're talking about. I was astounded at the amount of white space that was actually left. I've asked about the Darfur region, as a totally different topic, and the documents that I get back are page after page of blank documents. For some documents, there's a whole page that just says they're withheld in their entirety under subsection 15(1). You can't even read these documents. They're about Darfur, and it's hard to know that they are e-mails between people working.
I don't think it's specific to Afghanistan, but as I say, I think Afghanistan has caused a chill to go through departments at the working level because of the notoriety it has received.
:
Thank you very much, Mr. Chairman.
First, I want to say that we regret the filibustering that took place this morning. As you will have no doubt have realized, the members on this side are not responsible for the delay.
I have a number of questions to ask. I want to ask my first question to Mr. Esau.
You said that you were an information officer at the Department of National Defence. So you, better than anyone, understand the internal process when people request documents.
Has it ever happened that someone requested a document, that you went to see your colleague who was in charge, and came back saying that there was no such document, when you had in fact found such a document?
Do you understand my question?
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I have to answer that very carefully, because when I was the access to information and privacy training officer at National Defence, we were going through the Somalia inquiry. If you think this stuff that you're dealing with is sensitive, you ain't seen nothing. That was a departmental thing that they actually set up. The provision of documents during that period of time was done by the Somalia Inquiry Liaison Team that was created at National Defence to provide documents to the inquiry. In our job of going to the record holder and saying these documents had been requested and that they should please send them because we needed to deal with them, we were very much out of that line, for better or for worse. I'm not personally aware of anybody ever denying the existence of a document that they knew existed.
I think lots of things get lost, so one of the points I want to raise is that your ability to get information out of the government is predicated on the government's or the civil service's organization of that information. In other words, when you ask for something, the people who create those documents have to know where that something is stored. That's the bigger problem, in general terms.
Around the Afghanistan issue, I'm not aware of anybody saying point blank that it doesn't exist. I'm going to be very interested in what the Information Commissioner says in answer to my request. I'll give this to the clerk, but I indicated that I think Foreign Affairs falsely responded to my request because of the political sensitivity of the issues contained in the records. That's my sense, and that's what I told them.
Both of you are well versed in access to information requests. One of you told me earlier that it wasn't normal for the person responsible for the access to information requests not to indicate, next to the censored passage, the corresponding clause. Subsection 15(1) of the Access to Information Act has nine paragraphs, from (a) to (i). That subsection reads as follows:
15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including:
Then we find the paragraphs. The first begins as follows:
(a) relating to military tactics or strategy [...]
Whereas, visibly, if we think of what you did see, meaning the uncensored passages, this wasn't the case.
The second paragraph begins as follows:
(b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment [...]
That does not seem to be it, either.
The third paragraph includes the following:
[...] any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
This does not appear to apply either. At issue is the torture of Afghan prisoners.
The fourth paragraph begins as follows:
(d) obtained or prepared for the purpose of intelligence [...]
That's not it.
Next, we read:
[...] the detection, prevention or suppression of subversive or hostile activities;
That's not it.
Paragraph 15(1)(e) reads:
[...] in the process of deliberation and consultation or in the conduct of international affairs;
That is not it.
Paragraph 15(1)(f) reads:
(f) on methods of, and scientific or technical equipment for, [...]
That is not it.
Paragraph 15(1)(g) reads:
[...] for the purpose of present or future international negotiations;
That's not it.
Paragraph 15(1)(h) reads:
[...] diplomatic correspondence exchanged with foreign states [...]
That is not it.
Paragraph 15(1)(i) reads:
[...] cryptographic systems of Canada [...]
That is not it.
In what provision would you place the torture of Afghan prisoners, if you were the one responsible for censoring documents?
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Thank you, Mr. Chairman.
My thanks to both our witnesses. Let me say at the beginning that I can't imagine two more credible witnesses, both for their experience and their commitment to this issue of freedom of information. I thank them both for being here, and for their patience.
I'm not going to repeat some of the very good questions I've heard already. I'll jump right to the complaint that has been filed, because I think it's pluralistic and speaks to the whole issue.
Professor Attaran, your complaint says you believe DFAIT knowingly and improperly withheld documents that they knew to exist. Is that an accurate quote from the complaint that you filed?
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This is shocking. It really is shocking.
You say there seems to be a blind spot in DFAIT about torture. I'm not sure which of you witnesses jotted that note down, but there seems to be a wilful blindness, perhaps because it seems that we exported torture in the case of Maher Arar, or exported the dirty work to places where we had reason to believe torture may take place. Now that we finally have the floor and now that we finally have you as witnesses to question, my jaw is dropping at what you have to tell us.
On the criminal investigation, my colleagues from the Conservative Party are saying the first witness should be the Information Commissioner. We had the Information Commissioner here, speaking about this very issue, and the deputy commissioner answered a question from me about what the offence is in regard to denying the existence of a document. He said it's a criminal offence. He didn't cite section 67.1, but we did have him here to ask him about that.
It's your testimony that you believe there should be a criminal investigation, and you referenced that perhaps this is an appropriate task for the new Director of Public Prosecutions, whose office was just created by the new government in their Federal Accountability Act. Can you expand on how you might see that unfolding and how we initiate a request for such a prosecution by the new Director of Public Prosecutions?
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I wouldn't go that far about this particular issue at this point. I think a different issue that has to do with Afghanistan and access to information requests should probably be followed up. It's not particular to the matter you're talking about here, so I don't know if the chair wants me to go into what that might be.
I'm going to be very interested in getting the Information Commissioner's results from the investigation. The unfortunate thing about the federal Information Commissioner is that he cannot compel documents to be produced. You get a nice letter at the end of an investigation, saying that your complaint is well founded, that there were things withheld, and that they've told the department. But that still doesn't give you the documents.
The Office of the Information and Privacy Commissioner of Ontario, at the provincial level, can compel a department to produce documents. They have the legal authority to say they have investigated this complaint and have found the department was right in withholding some of this, but that it must produce this other stuff. And the Ontario office gives you a timeline.
I'm just going through that on another issue, so I'm going to be interested to see what happens. I want to take this one step at a time. The other issue that I'm dealing with, with National Defence, is much more serious.
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Thank you, Mr. Chairman, and my thanks to our witnesses for their patience.
As well, Mr. Chairman, I thought it was entirely appropriate for you to give Professor Attaran a little extra time, because we didn't have all the contextual information. He was very helpful in providing it in his opening remarks. That did take some time, but it allows us to be a little more fulsome in our questions.
Mr. Esau, I just wanted to say that I used to be a freelance journalist myself, so you have my empathy. I also used to be a Greely resident as well. My dad still lives there.
You had to listen to everything that went on this morning. There's one thing I have been trying to figure out, leaving aside the issue of what other laws might be appropriate and whether it might be appropriate to have other kinds of investigations, as Professor Attaran has suggested.
Just as it's written, our mandate deals with the access to information law and breaches of the access to information law. I wonder if either of you could assist me by pointing to aspects of this particular law that might have been violated.
I wrote down a couple of things that occurred to me as I was preparing here. I'm not sure if simply denying the existence of a document represents a violation. It may, particularly if it's done with knowledge that the document exists, although it does occur to me that it's conceivable—maybe it's not conceivable, so you could set me straight on this—that a person can just not be very well informed or very competent. That kind of thing could occur. But maybe that can't happen in this case. Anyway, denial of existence of a document could be one possible violation. I don't know if it is or not, but if it is, that would be a source for us to pursue.
There's citation of an inappropriate section of the law in dealing with this. Professor Attaran mentioned that subsection 15(1) is mentioned over and over again. Even if that's inappropriate, I don't know that it constitutes a violation.
There's the failure to be very specific. I can imagine. I have the law in front of me, and Professor Attaran is quite right, there are numerous paragraphs, ranging from (a) through (i), under subsection 15(1). That would be about eight or nine. In answering that, Professor, I'd be particularly interested in knowing if you normally get more detailed points, like paragraph 15(1)-whatever, and if this is a variation from that pattern that arose in this case.
And then, of course, I'm throwing it open to you as well to point out any other violations that you can point to. Obviously I'm referring to the Access to Information Act itself, because that is the document that our mandate allows us to act on.
Thank you.
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What the Access to Information Act says is that the government is lawfully able to withhold information, but that such exemptions must be “limited and specific”. In other words, the law does not contemplate being able to throw blanket exemptions over certain documents.
Section 25 of the act is what is called the severability principle. That basically means that if there is any portion of a record—and we talk about paper all the time, but it also applies to audiotapes and all the rest of it—that can be released without doing the injury test that would allow you to withhold it, that must be released.
The law affords a right of access. That's the first section of the act. The fundamental import of the act is to make that access affordable. Anything that restricts it has to be very specific, and for very good reason.
There are also time limits there. In other words, something that is secret and withholdable today might not be in a week's time. It has to be revisited every time.
There is one thing that I'm going to be very interested in. I'm going to get a copy of what was released to the professor, because that's the redacted version of it. Apparently the phone call I got from DFAIT yesterday was that my copy has come in. I'm going to be very interested to see if, in light of some of the controversy, they've changed some of it and have reconsidered.
Nobody's perfect. The Information Commissioner will go in and discuss with the people who know what is injurious and what isn't, and will come up with a workable rationale of what should be withheld and what shouldn't be. We can't take the human element out of it, but the specificity is absolutely fundamental to the right of access.
That's my shot at it.
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I believe the fundamental illegality here lies at the interface between section 15 and its various subheadings, which were not indicated precisely, and as Mr. Esau said, the law says they should be indicated precisely when they're used. The violation lies at the intersection between section 15 and section 67.1, which is the criminal law part of the act. Subsection 67.1(1) reads: “No person shall, with intent to deny a right of access under this Act,” and continues in paragraph 67.1(1)(c), “conceal a record”. I believe records were concealed.
I did not mention in my chronology a detail that is probably relevant at this point. On April 23 Madame Sabourin gave the CD to me containing the various Afghan human rights reports--not the U.S. one, which is still not answered. On the night of April 23 I reviewed those documents that had been given to me earlier in the day, and I found the excisions very heavy-handed. I wrote to her on the night of April 23, saying that I would like her to reconsider the excisions that were made and that I did not believe them to be lawful exercises of the act. In other words, I put her on notice that I believed an illegality had taken place. I offered to her to re-evaluate those excisions and get back to me within 24 hours. She got back to me on April 24, saying that the excisions would be maintained.
Why is that important? To the extent that you could say an accident occurred, that something was excised that shouldn't have been, and that it would have been an illegal concealment under section 67.1, I expressly asked for a reconsideration. The reconsideration was that we will withhold exactly what we've withheld. Therefore, it was not accidental.
Let me say at the outset that I'm glad we waited for this.
I've done a lot of human rights work in Africa over the last couple of decades, and in the last decade in Darfur especially. I find it troubling--and I thank you for driving home the fact, Professor--that while we spend all these hours, and often we're here.... I'm the newest member of Parliament in this group. We talk about policy and ideas and everything else, but in the end it is about these very people, and in the hours we have been doing this I can't envision what's been going on in the lives of these people who have been detained, perhaps improperly, or perhaps even tortured. I thank you for driving that home to us.
I have a question about the troops. I come from London, Ontario, and this last weekend all the Royal Canadian Legions from Ontario gathered for their biannual conference in London. I was asked to speak at it. The deputy minister for Veterans Affairs was also there. In meeting with many of the troops afterwards who have come back from Afghanistan, I found there was a general disillusionment among these troops in that they were not aware, although they have been made aware since they came home, of the U.S. report of human rights, the Afghan Independent Human Rights Commission, and the U.K. human rights reports that actually pointed to torture, sometimes killings, and other things.
We're talking about information here, and that's what we're about. It's important that we all support our troops, and all of us here want to do that.
But Mr. Esau, from your travels or discussions, what knowledge might our own troops have in that area of the world about these very things that we're discussing so much here?
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I think it depends on the level of the individual. We talk about troops as being a homogeneous group, but actually there's a very strict hierarchy and there's a need-to-know aspect. You don't want the master corporal who is riding in a convoy on a Coyote to be concerned about these other issues; you want him to be trained, to be knowledgeable that there are going to be bombs on the side of the road that'll go off remotely, or whatever, and that's what you want focused on.
The answer to that question is in the rules of engagement that are issued by the Chief of the Defence Staff on behalf of the government. They describe the situation you are going into and the levels of force, the escalation of force, and the parameters on the use of force for you. In fact, soldiers carry around a little card that tells them that's their authority to shoot or not shoot, or whatever.
The results of the information requests that I've got back from DND about what their level of knowledge is led me to understand that there were basically two briefings given to people who were deployed. They were on the rule of law, international law, and the laws of war in general terms.
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I think we do produce human rights reports. This is an example of one, this “Afghanistan 2006: Good Governance, Democratic Development and Human Rights”.
If what you're asking is whether we produce a report that draws together all countries between two covers, we don't, but that's hardly necessary. What is necessary is timely, accurate information about human rights, whether it's between two covers or not.
In the United States, the U.S. State Department does produce annual human rights reports for most countries, if not all, and those are freely available on its website. In fact, the U.S. State Department report reads quite similarly to the Canadian one on Afghanistan. I don't mean to be flippant, but if you were looking into other offences that might have taken place, plagiarism might be one.
It's very clear that the Canadian report is patterned on the U.S. version. Nothing is wrong with that, despite my joke; it's actually perfectly appropriate. If the U.S. version represents accurate observations of torture, why shouldn't the Canadian version? It is a sign of the Department of Foreign Affairs' head-in-sand mentality on torture and other human rights abuses that the reports the U.S. puts freely on the website are the ones our bureaucrats keep secret.
I can add one other thing to that--
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If I can add to my earlier comments about supporting the troops--and I hear what you're saying, and people can be disillusioned and stuff--I think there's very much a danger of compartmentalization of some of this knowledge, and I'll give you an example.
With reference to the report we're all talking about today, while I put a request in and I got the response, actually, on May 14, my request was to the Privy Council Office. I asked for any annual assessments for 2006 held or generated by PCO concerning Afghanistan's human rights records or performance, and the response I got back was, “A thorough search of our records under the control of the Privy Council Office was carried out on your behalf; however, no records relevant to your request were found”.
What it's saying is that it never got that report, so in developing rules of engagement and how troops and other people who are going to these places are dealing with the highest level of government, the committee that supports the cabinet has not seen that report, if I read this correctly. This is May 14; the clerk can have this too.
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What I was saying before you posed the second question--and I'll return to answering in the sequence I had in mind--is that the further evidence is the nature of the excisions that have been made.
To take an example, the very first sentence of paragraph one of this document--which has been excised, ostensibly on the legal authority of subsection 15(1)--reads: “Despite some positive developments, the overall human rights situation in Afghanistan deteriorated in 2006.”
That sentence cannot possibly, in my opinion as a professor of law and from reading the law, be justified under subsection 15(1).
I'll give you another example. The next excision, later in the same paragraph, is cut. This is what it said before it was cut: “Extra judicial executions, disappearances, torture and detention without trial are all too common. Freedom of expression still faces serious obstacles, there are serious deficiencies in adherence to the rule of law and due process by police and judicial officials. Impunity remains a problem in the aftermath of three decades of war and much needed reforms of the judiciary systems remain to be implemented.”
Nothing, sir, about that passage possibly falls within the ambit of subsection 15(1)--
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I'm glad you mentioned the Federal Court.
This same document, the Afghanistan 2006 report, has been requested by plaintiffs Amnesty International and the B.C. Civil Liberties Association in their judicial review now before the Federal Court.
Amnesty International and the BCCLA requested that the document be produced in accordance with the rules of the Federal Court. The Attorney General for this government--for the respondents in that matter, who are General Hillier and --objected to the disclosure of the report even to the Federal Court, citing national security exemptions.
That exception to national security--and this will tell you how confident I am in these procedures--I do not believe is a legitimate one. I believe it is simply being employed to withhold from the court this evidence. Where I assume the status of the matter is now--because in fact the judicial proceedings, according to section 38 of the Canada Evidence Act, are secret--
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I have two minutes left. So I want to quickly ask some questions.
First, when we see the dedication, resources, time and energy invested by the Conservatives today and previously to prevent us from doing this, it is clear they have something to hide.
The fact that the clause was not indicated next to the censored passages and that subsection 15(1) was invoked, clearly shows that it doesn't apply.
I would like a quick answer, because I have three or four other questions to ask. My question is for each of you. Are you convinced, yes or no, that illegal actions were taken?
And thank you, witnesses. Thanks for waiting so long. We apologize for keeping you that long.
Professor, we're glad you heard the call to the brain drain. We just hope we get some more technical people, which is not to minimize what you're doing. We certainly are glad when people of your position and your record make it their goal to come back home and live amongst us and help us. I know that your work is very important.
I think both of you wrapped up in the last minute, and I don't have a whole lot of questions.
Mr. Esau, if I understand this correctly, we have a culture...and you've been at this an awfully long time. You mentioned Somalia. Would it be safe to assume that when somebody from the press sends somebody an access to information request, especially on something sensitive like that, there is someone just going a little squirrelly on the other end? Is that safe to assume?
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Absolutely. For National Defence, there are a lot of really good news stories.
I look at the way things were conducted at all different levels in missions like Somalia, and some of the missions in Bosnia, in the early nineties and mid-nineties, and the support that the soldiers got, and then I look at today, and there's a big difference. But I'm not sure the difference is at the higher level--I don't mean within the military, I mean within the governing elite--as to how we want to....
The DND public affairs people are driving people nuts over in Afghanistan because they're letting the reporters go everywhere. I've written stories about just how open they're trying to be over there. I don't want to be seen to be trying to kick something that's down. I think there's a good news story, and I want to help tell it.
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I'd like to comment on the rogue bureaucrat hypothesis you mentioned--I believe those were your words--that one official just did not know about the report or didn't apply the act correctly.
It's important to note that the Afghanistan 2006 report, first, is not a top secret document; it's not even a secret document. It's only marked “confidential”, and that's a fairly low-level classification. Since it appeared on page 1 of The Globe and Mail in its partial glory, three colleagues of mine in three separate government departments have told me casually that they've seen that report. So it's not simply within DFAIT; other departments have this report as well.
It's curious, though, that within DFAIT some people who ought to have seen it have not. I won't go into that before this committee, because that's a different subject. But there is some evidence from the Amnesty International matter before the Federal Court that an assistant deputy minister of DFAIT, responsible for defence and international security, on oath said she had never seen the report, which is curious. It also strikes me as unusual, to say the least, that PCO would not have records of it.
The title of the document is not simply about human rights. It's “Good Governance, Democratic Development and Human Rights”. As I understand it, this year the government is spending $200 million on development in Afghanistan, so presumably some feedback on democratic development would be warranted from the embassy in Kabul and would be relevant to be seen.
I won't get into it here because, frankly, I don't know what PCO has or has not read.
I would like to follow up on Mr. Pearson's comments. This in no way is a comment on our troops, who are serving us proudly and in heroic circumstances, who, like us, have not been given accurate information either. So perhaps it is more a comment on this Conservative government shielding themselves, leaving our troops to hide their own mistakes.
I'm going to get down to the question, sir, that you get all the time. You mentioned section 31, why do you think section 31 was not invoked?
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Let me approach it in a lay sense rather than an overly legalistic one.
It's something each of you can answer in your own thoughts, without necessarily speaking up on it. But if you believe that records were concealed, based on what Mr. Esau and I have said, then that's a prima facie violation of paragraph 67.1(1)(c) of the Access to Information Act, which is punishable by imprisonment or a fine. It's as simple as that.
If, hearing the story, you think that nothing was concealed, then you would have to possess the opinion that there has been no possible criminality. If you believe it is possible that documents and records were concealed, then prima facie you must believe there could be criminality.
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You have a good sense of timing.
I'm going to call on Mr. Tilson and give him a full five minutes.
I want to remind the committee that we're coming up to the two-hour mark, as we talked about with Mr. . This is very interesting testimony. If either witness can stay longer and it is the will of the committee, we could proceed or simply call it a day, bearing in mind that we've been going at it non-stop for seven hours. Given the testimony, I'm willing to put that question after I hear from Mr. Tilson and give him his full five minutes.
If there are no points of order, I'd like to go to Mr. Tilson, and then we'll deal with what I've just said.
Mr. Tilson.
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We'll call the meeting to order.
At this point I only have Mr. Alghabra on the list. If there's anyone who wishes to ask any questions, please get the clerk's attention.
I now have Mr. Stanton, Mr. Tilson, and Mr. Dhaliwal.
We are in round three, and I'll follow the list as we normally follow it, with the time. I'll try to be slightly stricter on the time so we get everybody who wants to ask a question in.
Mr. Martin, do you have a question?
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Thank you very much, Mr. Chair. I'm happy to be here today.
Thank you to both witnesses.
Professor, I've been watching the questions, especially coming from the Conservative side, and all that appears to be coming forward is their just trying to create some distraction or diversion from the real issue here. It doesn't matter, really, what technicalities we're talking about; the issue here is that we have a human rights report that was blacked out, or parts of it were blacked out, and once we saw what was underneath that blacked-out section, we didn't really see any reason for it to be blacked out. That is really the gist of the matter here, and we're trying to understand why that happened. Having you both here has been very helpful for us to understand that. Regardless of all the noise, the bottom line is that we're still not sure, and we're trying to figure out why they were blacked out.
I really think this has to do with a lot more than just the detainee issue, for political reasons. There's the issue of the handling of the Afghanistan mission. Especially over the last year or so, things appear to be worsening.
So do you think, in your opinion, from what you've been observing...? I know you've alluded to it, but I want you to tell me your opinion about political interference, or the Conservatives' attempt to deny Canadians access to information that tells the whole story about what's going on Afghanistan.
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Thank you, Mr. Chairman.
Mr. Vincent will be using the last two minutes of my allocated time.
Mr. Attaran, you said earlier that you strongly believed that an inquiry was needed. There is no doubt that an inquiry is called for, but it remains to be seen whether the RCMP will act. By defeating, on a majority vote, all of the subamendments seeking to hold the inquiry in camera, this committee today voted to hold a public inquiry.
If it becomes an RCMP inquiry, we will never know what really happened. As I am sure you will appreciate, what we are doing here today is very important for how this will all play out.
I would like to come back to the fact that some people have something to hide, some people have a guilty conscience. Our Conservative colleagues, amongst others, have done their best to prevent us from speaking with you. Then there is the fact that it was never made clear which paragraphs of subsection 15(1) were being relied upon—that is another anomaly.
When this report was circulated, somebody somewhere must have read it and been shocked by it. There is at least reason to criticize the government, because the report contains information on the torture of Afghan prisoners, a violation of the Geneva Convention. Why did nobody in the department sound the alarm? Why did nobody act when the alarm was raised?
Somebody somewhere—a politico or otherwise—failed to make this information public and failed to remedy the situation that we are now examining in the House.
Could it be that there was an attempt to keep this report secret? Could it be that it was outrageously censored? Does this government have something, someone or some other country to protect? Perhaps it has plagiarized reports produced by another person or country. Perhaps the government wants to protect people in Afghanistan who did not do their job properly and thus avoid blame.
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I think everybody has a level of professionalism and ethics, and they want to do a good job. They want to do the things that they're asked to do. In the military it's perhaps even more pronounced, because everyone wears a rank, and you want to be seen to be carrying out orders efficiently and effectively, solving problems, and all the rest of it.
Quite apart from getting into any speculation about any nefarious motives, which I'm not convinced exist here, I think it's just—and somebody used the word earlier—an abundance of caution. I think people freeze up a bit when these things happen, and they may start acting in ways in which they wouldn't normally, and you can see that in the nature of the documents that are released. Documents on detainees that I received in June are much less redacted than detainee-related documents that I'm getting now. In fact, sometimes I get two versions of the same document—a version that was released in June, and a version that's released now, and one you almost can't read because it's been so redacted.
Part of my job as a researcher is to go through and compare, and to keep track of changes. That's why I said I'll be interested to see what's waiting in my mailbox at home, and, if they sent me a copy of the redacted report we're discussing today, whether or not the redactions are going to be the same as the ones that were given to the professor.
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I agree with Mr. Esau. I cannot say what actual motivations are. I cannot crawl into somebody's head and say, oh, that was the motivation they had at the moment they didn't act. I can give possible, hypothetical motivations.
One that has not been discussed, which I think you need to consider, is that of two of my colleagues, Professor Michael Byers and Professor Bill Schabas. They have expressed the opinion that Canada's transferring detainees when it was known that they would possibly be tortured is highly suggestive of war crimes, and those would be war crimes committed by Canadians. It is a war crime even if you're not the torturer, according to Professor Byers and Professor Schabas. It's a war crime if you're aiding and abetting the torture, i.e., by transferring.
It is possible that some information is being withheld because it is now understood that the consequences of the transfers, perhaps, are very much more troubling than was the case when the transfers initially started. The piece of evidence that--
I'm interested in comments and testimony where both of you, I believe, said it was your testimony that subsection 15(1) is being abused or overused, or used in areas that weren't appropriate. That's where I find the document that was made available to us very helpful, where you can actually see what's blacked out and what excuse they use.
Subsection 13(1) is used three or four times that I can find, and maybe appropriately, because it talks about information given to this government by the Afghanistan human rights commission--in other words, from another government. So that would make sense.
But it also uses paragraphs 21(1)(a) and 21(1)(b) in whole sections. Now, I understand that is advice to ministers or cabinet confidences. What are paragraphs 21(1)(a) and 21(1)(b) for?
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Perhaps it was Professor Attaran who used the term “abused”, but I'm inclined to use the word “abused” in my own.... I can take a little more latitude from my seat perhaps than you can.
In the last minute I have, I'll ask a point of clarification.
One of the excuses the government side members used as to why we should not hear your testimony today is they felt that by interviewing you it may somehow interfere with the ability of the Information Commissioner to investigate the complaints. In other words, by having these two studies running at the same time, there may be tainted evidence, etc.
There is the rule that what you say here is privileged and it can't be used against you, first of all, but if a person first learns of an offence through privileged testimony, it's tainted evidence in terms of pressing charges. Do you have any views on whether or not your testimony here today will interfere or jeopardize the investigation by the Information Commissioner or any subsequent investigation by the RCMP, if that's necessary later on?
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The Amnesty International and B.C. Civil Liberties judicial review that is pending before the Federal Court is a matter of national importance. That lawsuit seeks to prohibit the transfer of detainees to Afghanistan or any other country where there is a substantial risk of torture.
The fact that the Attorney General has been instructed by this government to employ the national security exemption of section 38 of the Canada Evidence Act-- actually, I believe it's section 38.01--and has instructed witnesses on cross-examination to not answer very basic questions on their affidavits, citing national security, is undeniably an obstruction of that lawsuit.
I repeat what I said before. In all the cases I have either participated in or watched closely, I have never seen the national security exemptions being used more heavily than in this case.
This is not a frivolous case. Amnesty International has a Nobel Peace Prize. They probably do have a legitimate interest in human rights around the world, I would say. That they are being obstructed in their legal proceedings by the Attorney General, acting at the instruction of this government, is absolutely unconscionable.
:
As I said in my main testimony on April 23, Ms. Sabourin disclosed the Afghanistan 2002 through 2006 reports to me, and that evening I did ask her to reconsider the exemptions, including the section 15 exemptions we've been talking about today.
I indicated that I thought the exemptions were heavy-handed, and I asked her to reconsider and to do so within a day, which she did. And she made absolutely no change, none whatsoever, to the exemptions. I told her that if she could not make a change to the exemptions, if she could not consider disclosing more information, as I was certain would make sense for a document of this kind, I would complain to the Information Commissioner, first, and second, I would inform The Globe and Mail.
In response, Ms. Sabourin said that I was “threatening” her, which was a very curious response, I thought. If a citizen using the Access to Information Act says either give me information or I will complain to the Information Commissioner and I will go to The Globe and Mail, that, to me, is not a threat. Yet her response was that I had threatened her and that she was going to keep a note of that on the file.
I pointed out to her that actually a citizen thwarted in an access request going to the Information Commissioner and going to the press is not called a threat, it's called democracy, and she ought to get used to the fact that democracy works, with the commissioner as a tool and with journalists as a tool.
But the reason I recount the story is that when you do have Ms. Sabourin in front of this committee, you may wish to ask her, in order to have a glimpse into her mindset on access, why she would construe a promise to go to The Globe and Mail and a promise to go to the Information Commissioner as a threat.
:
I'm sorry, I don't want to rush you along, but I only have five minutes and I want to get to my question.
So for about the last seven years, you've been working this. You described a culture that exists within certain departments. You said, for example, that some departments are quite willing, but sometimes there's some resistance, so that when the ATI coordinator actually goes to get the documents there can be a problem.
In your estimation, in the last seven years, have you seen a substantial change in the way that culture has evolved? Has there been anything, for example, in the last year or so that has changed as compared with, say, the early years in which you began to work in this field?
:
Thank you so much, Mr. Stanton.
Witnesses, on behalf of the committee, this has been a very long and challenging day for us all. We appreciate your patience in waiting for us to deal with the procedural matters. We appreciate your giving us your evidence and staying, in fact, a quite a bit longer.
Some hon. members: Hear, hear!
The Chair: I want to congratulate the committee in its entirety for its stamina, given that we've been at it since 9 a.m., so it's been a full work day. I think the taxpayers got their money's worth today.
I want to wish everybody a happy and safe long weekend—and break, working in the riding. We will see you after the break week.
Once again, witnesses, thank you so much.
We're adjourned.