Interventions in the House of Commons
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View Daniel Blaikie Profile
View Daniel Blaikie Profile
2019-06-17 21:03 [p.29236]
Mr. Speaker, it is a pleasure to rise tonight and speak to the government's motion concerning the Senate amendments to the access to information proposal by the current government which, as my colleague previously stated, was a pretty major disappointment for a lot of people in the access to information community who watch this closely, including journalists. There has been some debate in the House recently about the importance of journalism and government attempts to try to buttress the industry. Whether the Liberals are doing that the right way or the wrong way, that is another debate for another day and one that we have had already.
I do not think there is any dispute that the access to information laws of a country are one of the most important tools in journalists' tool kit who cover government. It is under the access to information laws, often in the absence of an informant or someone who is willing to leak information who is on the inside, that journalists are able to get information that is the beginning of a story about something that is going on that the government does not want Canadians to know about. That is why it is important that we have a good access to information regime.
I heard members on the other side tonight mention quite rightly that Canada has not had any kind of amendment to its access to information regime since it was brought into force in 1983. That is why there was a fair bit of excitement around the idea that Canada would get an update to its access to information regime. It is why people were disappointed when, in the view of the Information Commissioner, when this legislation was first presented, she said the status quo from 1983 is actually better than what the government has proposed.
In fact, we heard at committee not only in light of the event referred to in this quote, but the Duffy scandal of the next government and the SNC-Lavalin scandal that we bore witness to here in the House this spring, the former Information Commissioner Suzanne Legault, said:
When I was preparing for this committee, I went back to the request that was made by Daniel LeBlanc, the journalist who uncovered the sponsorship scandal. That request would not have met the new requirement under Bill C-58. That's a perfect example of how new section 6, as it is currently worded in Bill C-58, would amount to a massive regression.
What is interesting about that is the extent to which it shows that the rhetoric by the government around the Liberals' intentions to reform the access to information regime in a way that actually improves it did not match up with their effort in the bill. When we look at the efforts that were made at committee by my colleagues in the NDP to amend this legislation and to have those amendments summarily rejected by the government was another sign, frankly, of bad faith when it came to amending the access regime.
I was on the Standing Committee on Access to Information, Privacy and Ethics at the beginning of Parliament. We heard often from Minister Brison at the time who was the lead on the file for the government, about how great this would be, that we were now going to get reform for the bill after waiting decades and decades. This was going to be the government to do it. It was going to be wonderful, great and Canadians were going to have unprecedented access to government and information about government.
When the bill was finally tabled after a long wait and a lot of pressing in the House and at committee, about when the government was finally going to get around to it, it looked nothing like the promises in the Liberal platform. It looked nothing like the Prime Minister's own ideas for access to information reform that he presented in a private member's bill in the previous Parliament. One does wonder what happened in the interim to get a bill that was such a hodgepodge.
A lot of the selling of the bill is traded on a couple of distinctions that have been abused in order to obfuscate what is truly wrong with this legislation. Example number one would be the distinction between proactive disclosure of information on the part of government and access to information by Canadians who want to access information that the government may not want them to access because it may not be in the political interests of the government of the day to have Canadians access that information. I referred earlier to the sponsorship scandal, the Duffy scandal and the SNC-Lavalin scandal, all cases where government had an interest in having Canadians not be able to access certain information.
What we heard from Minister Brison at the time and his successors is that Canadians should be happy that the government is going to voluntarily publish more information on its own terms, information that it selects and in a format that it selects. There is nothing wrong with that. It is not that Canadians should not be happy that the government is interested in making some more information available in particular ways, but that is not the point of the access to information laws.
The access to information regime is not about patting the government on the back for making certain things accessible because it wants to and is presenting it in a certain format. We do not need legislation for proactive disclosure at all. A legislative framework is for Canadians who want access to certain information that the government does not want them to have. That is the purpose of an access to information regime and it is exactly there that the criticisms of the Information Commissioner and other stakeholders, like journalists, really hit the nail on the head. It is not that there will not be more information under some other definition available, it is that journalists and others who demand certain information of the government will be in a worse position to do so, including certain amendments that have to do with the way requests for information are filed in the first place.
The fact of the matter is that the government's idea was that people should already know a lot, not about the subject they are asking about but about the specific document they are asking about, despite never having seen that document or necessarily knowing which documents exist and which ones do not. Therefore, limiting the requirements of government departments to publish information about what documents exist and expecting that the person asking is going to have to know that, would know that or could know that is an unreasonable threshold for Canadians wanting to understand more about how their government works.
Another important distinction that has been equivocated upon in order to defend this legislation that is not very helpful is the difference between exclusions and exemptions. The committee heard the importance from the Information Commissioner's point of view, but also that of many stakeholders, of moving away from an exclusion regime. When things are excluded, that means the government says information falls under an exclusion, like cabinet confidence. There is no oversight of that. There is no independent person to look at that document and say it is not something that should be protected under cabinet confidence because it is not advice to government, it was a background document or something else.
One of the examples given at committee was putting all of the relatively less sensitive information that may be inconvenient for government to have Canadians know about on a cart, roll it through the cabinet room during a cabinet meeting and then say it was in the cabinet room so it is protected under an exclusion for cabinet confidence. That would be quite disingenuous. That would be a terrible thing to do, but some of us believe that kind of disingenuity would not be unprecedented in politics. If some members on the other side are not willing to believe it of their own government, they might believe it of other governments.
An access to information regime ought to create circumstances where that is not possible and Canadians can have confidence that unscrupulous governments are not doing that. The problem with exclusion-based regimes is that they do not give Canadians that confidence. The belief of New Democrats and many Canadians concerned with these issues is that it would be reasonable to have, instead of an exclusion, an exemption where the government could say something is a cabinet confidence, it was advice to government and it ought not be released. The Information Commissioner would then have the ability to look at those documents, as someone who deals with sensitive information all the time. There are civil servants and officers of Parliament who deal with confidential documents. We are not asking for something unprecedented. In that role, the Information Commissioner would be able to review those documents and determine whether in fact it is something that ought not be released because it is a genuine cabinet confidence or something that could be released because the government of the day was abusing that exemption. That was not addressed.
In fact, New Democrats wanted the Information Commissioner to have order-making power. The Information Commissioner has a kind of order-making power under this legislation, but what the Senate foresaw, as we did in our recommendations, was that order-making power should have the force of Federal Court. One of the virtues of giving the Information Commissioner order-making power was predicated upon the idea that those orders would have the force of Federal Court. It was meant to remove one of the things that causes massive delay, which is judicial appeal of denials of access to information requests.
If the Information Commissioner is going to be able to make an order, but it does not have the same force in court, that means people are going to have to go to the Federal Court to get it to back up that order and give it the force it should have had in the first place. That is certainly a missed opportunity there. The government motion today takes out the Senate amendment that would give that authority to the Information Commissioner's order, thereby undercutting one of the important benefits of giving the Information Commissioner order-making power in the first place.
Of course, one of the features of the PMO's private member's bill in the last Parliament and a commitment in the Liberal platform was to apply the act to the Prime Minister's Office and ministers' offices. I know that was something that Minister Brison was quite verbose about in the early days of the Parliament, and then it kind of fell out. It is funny that he should come up. It is funny that he should be the person in charge of access to information reform, because Mr. Brison, in another life in this place, was the minister responsible for defending the previous Liberal government for the sponsorship scandal. In fact, I am preceded by another member for Elmwood—Transcona, who called him the “clown prince of spin”, I believe, in relation to his performance on that file. He was, in the same form, defending the current government's reforms of the access to information laws, which really do not cut the mustard, but were being spun a good yarn by Mr. Brison. That was an obvious omission with respect to a clear promise in the Liberal platform that the access to information laws would apply to the PMO and ministers' offices. We had a very good example this spring as to why Canadians would want that to be the case.
We did see an instance around the SNC-Lavalin scandal of the importance of good note-taking when it comes to conversations between ministers and senior political staff in some cases or between ministers or between political senior staff. That is why the access to information all-party committee recommended that there also be a duty to document. Not only did we see instances where notes were decisive in testimony this spring here in Ottawa, but we know that in other jurisdictions there have been serious scandals about governments that deliberately set out to communicate among their senior political staff and ministers in such a way as to create a vacuum of documentation.
That is a problem for journalists and interested Canadians who want to use an access to information regime in order to keep their finger on the pulse of what is happening in government today. However, I would say, as somebody who has made a study of history, that it is also a real loss for people in the future who are trying to understand why governments of the past made certain decisions. Therefore, it is a problem if we do not have an enforceable expectation that people in government who are responsible for making decisions about serious government resources, whether they are financial or other resources, and bringing the power of government to bear through regulation and legislation, are not required to ever document the reasons for their decision-making. How then do people understand the decision-making of that government, whether it is the government of the day or a government of the past? That is why there have been clear and consistent recommendations for a duty to document. It is a disappointment that we do not have that in this legislation.
Those are some of my thoughts that I want to put on the record. For me, the conclusion is obvious, which is that, for as much as people have waited a long time for these changes and there was a lot of hype around what these changes would mean, they do not meet the bar.
I was reading in my notes that, currently, Canada is ranked somewhere around 49th in the world for its access to information regime and if we were to pass this legislation in its current form we would ascend all the way to 46th. I submit that a once-in-a-generation reform to the access to information regime ought to move the needle a heck of a lot more than that. That is why I think it is fair for people to view this legislation as a serious disappointment.
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