:
I assume I have the floor.
Thank you, Madam Chair.
I wish to express my thanks to members of the committee for permitting me to appear before you this morning. I'm particularly willing and pleased to do so, especially under my guise as a professor of law at the University of Ottawa, with a measure of expertise with the federal Access to Information Act.
Let me open by noting that both the Charter of Rights and Freedoms and the Access to Information Act were enacted in 1982 within three months of one another. Since then these acts have been exhaustively tested by the court, and time and again the access act has withstood challenges to its raison d'être thanks primarily to the excellent work done by the original drafters. Therefore, the access act, like the charter, has aged quite well. Also, they've adapted to societal and technological changes that have taken place over the last 30 years. Therefore—and I've said it before in this committee—in my considered opinion the access act is by and large fine as it is.
I believe that the provisions of the access act, if followed and implemented properly, allow Canadians to access government records, while providing fulsome protection to privileged information, the disclosure of which could do harm to protected interests.
Canada is one of about 80 countries that recognize freedom of information as a basic right. Moreover, as a leading democracy, Canada's access act has quasi-constitutional status. You may ask, why does the access act have a quasi-constitutional status? It does because, first, the act contains a notwithstanding clause, which gives it an overriding status with respect to any other act of Parliament; second, because its purpose is twofold--democracy and public accountability.
The Supreme Court, in 1997, stated specifically what the principal functions of the act are. They are four: first, to improve the working of government; second, to make government more effective, responsive, and accountable; third, to facilitate democracy by helping citizens to have information required to participate meaningfully in a democratic process; and four, to ensure that politicians and bureaucrats remain accountable to the citizenry.
Also, I strongly believe that the Information Commissioner already possesses quite considerable powers to investigate complaints. To be sure, her powers are equal to those of a Superior Court of Justice judge. I agree, however, with the Information Commissioner, that her mandate should be extended so that she becomes more proactive in educating Canadians about their information rights. This committee, which oversees her work, should give her the green light in that regard.
I have one last point before turning to the subject of your inquiry. I also agree with Mrs. Legault concerning records currently held in ministers' offices. These records are already protected under the access act, as drafted. In accordance with the democratic objectives of the act, I believe very strongly that ministers' offices should be made subject to the act. How do you do this? Simple. An order in council pursuant to subsection 77(2) of the act and it's done.
I would like now to turn to the area your committee is presently examining, and that is the court action concerning CBC.
CBC came under the auspices of the access act in September 2007. However, when it did, the act was amended to include section 68.1 to protect “the journalistic, creative or programming activities” of the CBC. In doing so, Canada followed in the footsteps of the U.K. and Australia, which also have a national broadcaster that is subsidized with public funding. This is not surprising, given that our very own Supreme Court has already made it quite clear that journalistic sources have privileged protection under the law. However, in discharging its access obligations over the past four years, it appears that CBC went above and beyond simply protecting its journalistic interests.
I would be less than forthright if I did not say that in my opinion the CBC appeared to abuse section 68.1 in a blatant and ill-disguised exercise to either delay or deny access to records--or both.
While on the issue of delay, let me hasten to say that the CBC has used, with equal liberty, a myriad of other exemptions, exclusions, and exaggerated fees to not only deny, but more importantly to systematically delay the release of information. As the saying goes, “justice delayed is justice denied”. After all, what good is information requested from the CBC in 2007, if four years later the said information has yet to be disclosed?
As an experienced user of the act who writes on it and teaches access to information, it would be naive for me to think that what is at play behind all of that obfuscation is anything but an exercise in delaying disclosure of records for as long a period as possible.
Truth be told, contrary to most federal institutions, the act has very limited effect or impact on the CBC. Why? The CBC is subject to the act only for information that is not held for the purposes of journalism and programming. Yet at present the public position of the CBC is that any challenges by any requesters as to the correct application of section 68.1 should be made before the court, and not the Information Commissioner.
I find that suggestion condescending, because it would force requesters to engage in judicial combat, costing them thousands and thousands of dollars in legal expenditures and years of delay, against a public corporation that already benefits a great deal from the public purse. To suggest that course of action, in my words, is an insult to the very purpose of the Access to Information Act, democracy at play, and the intelligence of the Canadian public.
So what is the CBC to do? It's simple. First, to the degree possible, the CBC needs to make every effort to disclose, in a timely fashion, records that are not truly covered by section 68.1.
Second, when invoking section 68.1 the CBC should willingly cooperate with the Information Commissioner, who after all is an officer of Parliament speaking on your behalf, by giving her access to records that they contend are covered by their journalistic exemption. In doing so, the CBC might maintain a modicum of credibility and objectivity with the public it serves.
On a further point before I close, the CBC, like CTV, TVA, Global, The Globe and Mail, Sun Media, etc., has developed quite an expertise in the access domain, providing the Canadian public with a critical examination of public administration. When these news organizations submit access requests they do so in the performance of a public duty to inform the citizenry of the goings-on in government. To the citizens it matters little whose news organization investigates and reports on the public spending and performance of public institutions. What is important is that it gets done.
Before I open myself to your questions, permit me to raise one last observation. It is that the court has ruled that the purpose of any request is wholly irrelevant. The purpose of the act is to provide a right of access to information under government control. That right is available to every member of the public, and the intent, purpose, motivation, or the occupation of a requester has no legal significance. It is the records that matter and that cannot be modified, regardless of the presumed strategy of the requesters.
It's an honour for me to play a part in your examination, and I'm now open for questions.
Thank you.
:
You raise three points. Let me address them be in the reverse order.
Concerning demise, you have somebody here who's a fan, an admirer, and a supporter of the CBC. I think they add considerably to the fabric of the nation. They have done so, and I hope they continue to do so.
At the same time, I'm a taxpayer. As a taxpayer, I need to know and I have a right to know, and it's a quasi-constitutional right. If somebody goes through a formal process of requesting, CBC has all the tools and all the exemption at its disposal to redact what needs to be redacted. But in the fullness of time, in accordance with the delay specified in the act, it should release the information.
It may not be I as an individual who am requesting this information. Perhaps members of Parliament might be; the Library of Parliament might; people from outside the country could—or competitors. Well, we live in a very competitive world, and you could say the same, if not about the CBC, then about other crown corporations. The fact that somebody asks—and the court has looked at this frequently, in the air transport regime, for instance, when allegations were made that this was only to embarrass them, only to provide information to a competitor.... The act itself is beautifully synchronized and structured to provide for information to be protected and privileged.
Whether a competitor asks for it because they have the motivation to do so—or somebody alongside, an association or something else—who cares? The court says motive or purpose has nothing to do with it. You cannot modify the documents and the records therein only because your competitor asks for it. In fact, you should not know who asked for it. You are asked, you release it, it becomes part of the public record, we all become informed about it. That's the way democracy works.
:
Thank you, Madam Chair.
Good morning, Mr. Drapeau.
Col Michel W. Drapeau: Good morning.
Mr. John Carmichael: As I listen to your responses to the questions from the other side, I appreciate that your intent is probably similar to the intent of both sides, and that is to get to the root of the problem and to fix it. It appears to me that with the CBC right now, we're living in a do-as-I-say-not-as-I-do world, where, from my perspective and from everything I'm reading, they simply are thumbing their nose, not only at the Information Commissioner, who is appointed by this House, but also the courts of the land, which I find particularly obnoxious. I too, as you've stated, rely on the CBC for much of the news, and a lot of the information they provide is good information. So when I see that, it's a total conflict of values to my sense.
You've also addressed section 68.1. The CBC's treatment of that section is a blatant and ill-disguised exercise, which is probably an issue that is them again thumbing their nose at the laws as they exist and the rules as they're established. In Justice Boivin's summary...and we heard from the CRTC CEO, Mr. von Finckenstein, the other day talking about section 68.1 as being poorly drafted. It appears from what I'm hearing in your testimony that there are ways in which we can fix this.
Do you have some specific thoughts of how we can fix section 68.1 so that it applies fairly to everybody?
:
First of all, it applies only to the CBC. I'm a great believer in traditions. We have a tradition of common law, and many of our legal systems come from the motherland.
Amazingly, in the U.K., in their freedom to information act they have also found it difficult on the simple reading of the act to say where the borders or frontiers are. The court has stepped in, including the high court itself, to define.... The way it works for the BBC, in annex A, which lists the institutions subject to the act, it says the BBC, except for journalism, art, and literature. That's what it says, which is pretty well the same as what we do. We came about it in a different fashion, but no more explanation. The court has defined what that is and defined where the balance lies.
I think we will need to wait for the Federal Court of Appeal, which has now reserved judgment on the hearing of October 18, to arrive precisely at a decision, if not on what journalism means then what the powers of the Information Commissioner are in response to a complaint. I'm looking forward to that.
I would suggest very strongly that we all wait until the Federal Court of Appeal, which has a considerable amount of experience in interpreting the access act, does so.
:
Yes, there was, sir. I think the covering letter said “exemption under”, and then there was a series: 19, which is personal information; 20, which is third-party information; 16 is security, and so on and so forth. There was the whole string of exemptions.
And of the 1,500-some pages, if memory serves, I think there were 37 pages that had some typewriting on it. In some cases it was “pages 600 to 900 redacted under section so and so”; that was the nature of it. There was nothing of any significance, except for the front page that defined the purpose of the 1,500 pages.
We paid considerable fees to obtain that, and we waited quite a long time. We put in a complaint, but because of the section 68.1 that is currently before the tribunals we are awaiting a decision from the court before the Information Commissioner can proceed in sifting through this document.
We've been four years waiting on that particular report, which was the audit report done by an external firm of a national reputation. The cost of it was in the 300 figures. It was a substantial expenditure of public funds, which we thought we should have, concerning a computer program called Vision. So far I think it has cost $60-some-odd million.
It's not as if we were trying to pester, as the suggestion might have been at the CBC. We had a legitimate need to know what happened, how that particular project was managed, where the lessons were learned, and so on and so forth. So far we haven't been informed of any of that.
[Translation]
Ladies and gentlemen, members of the committee, good morning. My name is Pierre Karl Péladeau. I am the President and Chief Executive Officer of Quebecor, Quebecor Media and Sun Media Corporation. We want to thank the committee members for the opportunity to share our opinion on access to information regarding CBC/Radio-Canada, given our experience with the state broadcaster in this matter.
[English]
I am here today as the CEO of Sun Media Corporation, Canada's largest newspaper publisher and private media company in Canada. We manage 42 daily newspapers all around the country, including major urban newspapers like the Toronto Sun, the Calgary Sun, and Le Journal de Montréal, the largest- circulation French newspaper in Canada, the 24 Hours chain of free dailies, as well as many other newspapers, like The Sudbury Star, The Peterborough Examiner, the Grande Prairie Daily Herald Tribune, and even Canada's oldest continuously published daily newspaper, The Kingston Whig Standard. In addition to this, we also own close to 200 weekly newspapers in all regions of the country, as well as two all-news stations, Sun News and LCN, and Canada's biggest French-language broadcaster, TVA, which dominates the news segment in front of Radio-Canada.
Sun Media newspapers have a long tradition, both proud and fearless, of shining a light on wasteful and ineffective spending of all levels of government, forcing them to reveal critical information of interest to Canadians. For example, we recently revealed the fact that the federal government had a list of suspected war criminals wanted for deportation, and that Ottawa would not disclose their identities. Our front page stories, along with coverage on Sun News, led to the government changing its policy and creating a most-wanted list, which resulted in the apprehension of a number of dangerous fugitives.
In other words, we abide by the credo expressed in the landmark 1989 Supreme Court ruling that “a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions”. As the crown corporation receiving the largest subsidy from the Canadian Parliament, CBC/Radio-Canada cannot be immune from public scrutiny. Unfortunately, for about 25 years, from when the Access to Information Act was adopted in 1982, until 2007, citizens and journalists were not able to use one of the most important accountability tools available in our democracy, the access to information regime.
When this changed, following the adoption of the Federal Accountability Act, it is understandable that an organization with over a thousand journalists would file a great number of access to information requests to the state broadcaster. It is our duty and our right as conferred by Parliament to do so. What followed is by now well documented, having been the object of several damning reports by the Canada Information Commissioner: proactive delays, exorbitant demands for search fees, numerous complaints, and, in the end, very little information to Canadians about how the state broadcaster manages public funds.
The main reason that CBC/Radio-Canada lacks access to information performance is its insistence on hiding behind a series of exemptions and exclusions. The most significant of these exclusions, and the one that brings us here today, is the exclusion stemming from section 68.1, which states that the Access to Information Act "does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration". CBC/Radio-Canada took the Information Commissioner to court over the right to be the sole decider over what information can be withheld by virtue of section 68.1.
A first ruling rejected the state broadcaster's conceit. Judge Boivin declared that the "position taken by the CBC confers the Crown corporation judge in its own case in respect of access requests it receives". To CBC/Radio-Canada and executives, this case is first and foremost about protecting journalistic sources. Of course, protecting journalistic sources is also a priority for Sun Media. This is in fact shown by the fact that not a single one of the numerous access to information requests we sent to CBC/Radio-Canada was aimed at journalistic sources. In fact, not only have we never made such demands, but we never would. Furthermore, of the 16 access to information requests that are before the court, not a single one is in any way related to journalistic sources. I have the requests with me.
The requests ask for travel expenses for Sylvain Lafrance, who received la Légion d'honneur in France, outdoor advertising expenses, a commercial agreement to create a new magazine, and so on. In other words, it has nothing to do with journalistic sources, but all to do with CBC/Radio-Canada using every possible scheme to refuse accountability.
This, unfortunately, is nothing new for us at Sun Media. To illustrate this, I have brought with me a couple of requests submitted by Sun Media to CBC/Radio-Canada and what we got in return.
The first one concerns the state broadcaster's fleet of vehicles. What we got back is a single line of text mentioning a lone 2007 Ford 500. All other 17 pages of the document have been redacted, with CBC claiming an exclusion under section 68.1. I must still have a lot to learn about creation, programming, and journalism, because I fail to see what asking for information about a fleet of cars has to do with any of these activities.
Another request concerns CBC/Radio-Canada's 75th anniversary celebration planning budget. What we got in return is 250 pages with all and any dollar amounts redacted by virtue of one exemption or another. Withholding information from Canadians about the cost of anniversary celebrations is apparently par for the course when it comes to CBC/Radio-Canada's interpretation of the Access to Information Act.
[Translation]
Ladies and gentlemen, I used these few examples to try to illustrate the types of difficulties Sun Media has come across in its attempts to do its job as a media outlet.
Despite the opinion of people who accuse us of waging war on CBC/Radio-Canada, we believe that those requests are not only legitimate and of public interest, but also fully compliant with the spirit of the act.
Unfortunately, the reality is that Sun Media is currently the only press group with the distance and independence needed to ask those questions of the state broadcaster. That testifies to the extent to which many of our competitors are allied with CBC/Radio-Canada.
Is it a coincidence that the presence of reporters from the daily newspaper La Presse, published by Gesca-Power Corporation, on CBC's television and radio programs is inversely proportional to the number of requests the newspaper has submitted regarding CBC/Radio-Canada, which actually specializes in that?
[English]
But to be sure, the lack of scrutiny of CBC/Radio-Canada is not just a Quebec media phenomenon. When the National Post was launched back in 1998, one of the changes it brought to the media landscape was the willingness to turn a critical eye to the management of the state broadcaster in a regular segment called “CBC Watch”. That has changed. Today the National Post is in a commercial partnership with the CBC whereby the CBC provides it with essential sports and video content. It is no surprise that “CBC Watch” is gone. It has been replaced with stories promoting new CBC programming and giveaways of episodes of The Nature of Things to people who sign up for their mobile app.
I don't want to pick on the National Post; it is the rest of the media as well. Bell, the owner of CTV and CTV Newsnet, has just launched a joint bid with CBC/Radio-Canada for the Olympic coverage, and Canadian Press's biggest customer is CBC/Radio-Canada.
The Globe and Mail and the Toronto Sun, two of the three owners of CP, benefit from large advertising buys from the CBC. Meanwhile, taking a critical editorial position on the CBC will result in the state broadcaster pulling all advertising from our papers, as Sun Media knows only too well.
Between their strategic partnerships, their advertising budget, and their direct payments to journalists in other media organizations, CBC/Radio-Canada has somehow managed to quiet dissenting voices in most outlets--everywhere, that is, with the exception of Sun Media.
[Translation]
Ladies and gentlemen, members of the committee, CBC/Radio-Canada annually receives over 1.1 billion dollars in parliamentary appropriations to fulfill its public broadcasting mandate. In exchange, Canadians have the right to expect a level of transparency that would enable them to ensure that the money they give to the crown corporation is well spent. In other words, the money should be spent efficiently and in alignment with its mandate.
Thank you very much for your attention.
:
I sent one letter mentioning that I'd been talking to...and sending letters. In fact, there were 17 letters being sent to Hubert Lacroix.
My job, as the CEO of Quebecor Media, is to make sure that we have the appropriate proportion of our advertising in Canada. Since our media business, especially newspapers, is basically fed by advertising, this is one of the most important sources for newspapers.
If we want to have strong newspapers in Canada, I think it's only natural that the public corporation--
Mr. Charlie Angus: Gives you a share; okay.
Mr. Pierre Karl Péladeau: We've been seeing many other institutions in public life advertising in our paper, the only exception being Radio-Canada/CBC.
Mr. Charlie Angus: Okay, so--
Mr. Pierre Karl Péladeau: And this has taken place over the last few years.
Mr. Charlie Angus: Sorry, but I have only about five minutes left, sir.
Mr. Pierre Karl Péladeau: Before, CBC/Radio-Canada had been advertising in our papers--
:
Thank you, Madam Chair.
I appreciate the discussion here today. I want to just ask you, Mr. Péladeau, to elaborate a little bit more on some of these get-the-facts points that have been raised recently.
It says here, and we talked about it a little bit, that Quebecor has received more than half a billion dollars in direct and indirect subsidies and benefits from Canadian taxpayers over the past three years, yet it is not accountable to them. I've heard others come before this committee trying to make the argument that if an organization, a company, a business receives a tax credit, takes advantage of a tax incentive program—which obviously costs the federal coffers money, but not directly, as it's an indirect cost, simply money not collected on behalf—that would be similar to receiving a direct subsidy or a direct cash transfer from the Government of Canada, which of course CBC does get, to the tune of over $1 billion a year to provide a mandate for that investment.
Do you think it reasonable that section 68 of the access to information law would apply to every business that takes advantage of a tax credit, or a tax incentive policy, to have to publicly disclose information through the Information Commissioner if an access to information request were filed? Is that a reasonable thing to do? Because every car dealership, every gas station, everybody would then have to. If we followed through on that policy, someone hiring an employee, using the hiring tax credit, someone using a tax credit in their business, or even an individual using a tax credit to fix up their back yards during the home renovation tax credit would somehow suddenly be open to an access to information request. Do you think that's reasonable?
:
Thank you, Madam Chair.
Mr. Péladeau, I was a bit surprised by the tone of your presentation. You came across as if you were under siege, a bit as if the rest of the world was ganging up on you. For a moment, I almost forgot that you were at the head of the largest media empire in Quebec and Canada, a media empire whose political stance is rather clear. It's an empire that is rarely subtle and visibly eager to please the current Conservative government. You presented a vision of things that is a bit Manichean in my opinion. It creates a contrast between the mean crown corporation, heavily subsidized by taxpayers, and a private company that is trying to do its work, information broadcasting, and is part of the forth pillar of democracy.
However, CBC is a public service and not a competitor. It's part of another category of stakeholders in the country's information and programming market. It has a specific mission that private broadcasters do not have, such as providing a service in English in Saguenay or in French in Saskatchewan, for instance. That's a role that I think private broadcasters don't have. The corporation has additional obligations in terms of services, but also in terms of programming content. Since 1952, CBC has had to draw at least 35% of its funding from market profits. I think that's what you take issue with. You see CBC as a competitor that steals your advertising dollars. You, on the other hand, are a real entrepreneur that is trying to do its job and carry out its private broadcasting mission.
For the benefit of the committee and those present, could you remind us what percentage of Quebeckers' savings was used to build Quebecor Media, which is the source of your empire's expansion? How involved in Quebecor Media is the Caisse de dépôt et placement du Québec?
:
Again, they've been trying to create a lot of confusion regarding what this public money is all about. How can you really compare a parliamentary credit of $1.1 billion with any other kind of public money that private companies would receive or be entitled to? There is no such thing as taking the money from somewhere; they've been trying to confuse what parliamentary credit is all about—subsidy and tax credits.
Yes, it's true that TVA, our broadcasting operation, indirectly received tax credits that had been awarded to private producers. This is how the system works in Canada. In fact when you're looking at what this tax credit is all about, you will find that the amount of money independent producers receive to broadcast their programming on CBC is very different; it is much larger than what private producers who are distributing their programs on TVA will receive.
I have an example, in fact, and I think it also shows what this business is all about. There is a large private producer in Montreal called La Presse télé, which is a subsidiary of Gesca Power Corporation. For the last six or seven years, or maybe more, they have received $150 million of tax credits. They're selling 80% of their programming to CBC/Radio-Canada—obviously more specifically to Radio-Canada, because this is French programming.
This is something that could also highlight that eventually there are not going to be a lot of media companies that will investigate on CBC/Radio-Canada. Basically they are in conflict of interest because they are receiving so much money. They are the state broadcaster, so you're not going to spit on the hands that are feeding you. This is what this business is all about.
On subsidies and tax credits, we are entitled to that, according to Canadian programs that exist. We're not taking more or less; we're taking the share as the one proposed to all other private companies. We're not the only one receiving this. We see Global, we see CTV, we see many other private broadcasters being entitled to those programs.