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Results: 1 - 46 of 46
Alexandre Lavoie
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Alexandre Lavoie
2014-10-07 13:19
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The bill amends the Parliament of Canada Act to require the Board of Internal Economy of the House of Commons to open its meetings, with certain exceptions, to the public. It also amends the Access to Information Act to give the Information Commissioner the power to make compliance orders.
The bill does not concern a question that is outside federal jurisdiction. It does not clearly violate the Constitution Act. It does not concern a question that is substantially the same as one already voted on by the House of Commons. It does not concern a question that is currently on the order paper or notice paper as an item of government business.
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View Frank Valeriote Profile
Lib. (ON)
View Frank Valeriote Profile
2014-10-07 13:21
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I think as well there's probably some sufficient difference between the actual wording—and I know where you're coming from—of the motion of which you speak and the wording and the requirements of this. There's a point where it diverges from exactly what the motion was, and I think this diverges sufficiently from the motion that it makes it different in its requirements.
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Alexandre Lavoie
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Alexandre Lavoie
2014-10-07 13:21
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I don't have to make the analysis on both for that. I followed the practice not to consider bills against motions, but I could do that if you want.
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View Alexandre Boulerice Profile
NDP (QC)
Ms. Stoddart, do you believe that disclosing the large salaries of public service employees is an effective transparency measure?
If that is your opinion, should that measure also apply to the political staff of ministers and to people working in the Prime Minister's Office?
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Jennifer Stoddart
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Jennifer Stoddart
2013-06-05 16:30
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As I said, I am not necessarily an expert on transparency or access to information, which are closely related matters. However, we hope that public disclosure of the salaries of people who earn large amounts of money will have the effect of guiding the actions of those people since they would then be in the public spotlight. I believe that is the general idea behind this.
Is that measure effective? I do not know whether a study has been conducted on the subject, but I would note the case of federal superior court judges, whose salaries have been publicly disclosed since 1906. It appears that that measure has generally been effective since, with few exceptions, it has resulted in irreproachable behaviour on the part of judges across Canada, in contrast to the situation in countries less democratic than Canada. That is all I can tell you on that subject.
What was your second question?
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View Charlie Angus Profile
NDP (ON)
View Charlie Angus Profile
2013-06-03 15:39
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I guess that's one of our concerns. The Privacy Commissioner has referred to ministerial departments as black holes of information, where all manner of things can be done and there's absolutely no accountability. I know that's not within the parameters of your bill, but do you believe in principle that there has to be better disclosure so we ensure that things are done properly?
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View Brent Rathgeber Profile
Ind. (AB)
Absolutely. As I said when I was here a couple of weeks ago, Canada is currently ranked 55th out of 93 countries internationally, and the Centre for Law and Democracy has said that the federal government is falling behind the provinces in terms of access to information.
So I agree with the Information Commissioner that a complete overhaul of access to information legislation to move it into the 21st century is long overdue. However, it appears unlikely that the government will table such legislation, so I am mindful of the commissioner's concerns about a piecemeal approach to bringing Canada's access laws up to date—and certainly this bill would be considered a piecemeal approach.
But I think the wider expansion of access to information to include Parliament, the Senate, and the PMO requires a much broader discussion than we could have with a private member's bill.
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View Alexandre Boulerice Profile
NDP (QC)
Thank you, Mr. Chair.
I am going to use the rest of my colleague's time.
You rightly pointed that, nearly seven years after the Conservative Party came to power, Canada is ranked 55th or 56th in the world when it comes to transparency. That isn't a very stellar record for a party that advocated the importance of cleaning up the management of public funds and increasing transparency. That's an admission of failure by your account.
Many departments and agencies have much more serious problems than those at CBC/Radio-Canada, to whom the Information Commissioner gave an A rating, let's not forget.
Why, then, are you going after CBC/Radio-Canada? Other departments have a considerable number of problems, not to mention the fact that your party has a pretty abysmal record when it comes to transparency. Why go after something that's working well, when you should be fixing what's actually broken?
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View Brent Rathgeber Profile
Ind. (AB)
Mr. Boulerice, just for clarification, as I think the Information Commissioner confirmed when she was here last week, the report card dealt only with the timeliness of responses, not with breadth of information disclosed. While the CBC did improve and got an A on their last report card with respect to how quickly they were turning over their access requests, I don't think you should read into that or conclude that the breadth of their disclosure has increased.
I agree with you that it would be preferable if there were a comprehensive re-examination of the access to information legislation in Canada. When Canada first got access to information legislation in 1982 or 1983, it was deemed to be at the cutting edge. We were world leaders, and now 30 years later we've become laggards. Our international ranking has gone to 55th out of 93 countries surveyed.
The problem is that I don't see a comprehensive overhaul of Canada's access laws coming any time soon. Maybe that's a project the committee might undertake.
So we're left with individuals who lobby for specific changes to the Access to Information Act. As you know, I tabled questions in the House of Commons about 18 months ago with respect to the Canadian Broadcasting Corporation, comprising a compendium of issues my constituents had asked me about over the years regarding the CBC, things they were curious about but couldn't find out.
This private member's bill is very limited in scope and very specific. It corrects what I think are some problems with section 68.1, as confirmed by the Federal Court of Appeal. It attempts to bring some meaningful salary disclosure with respect to the top managers in the federal public service, but I admit that it's not a comprehensive change and is very specific and, therefore by definition, piecemeal.
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Gregory Thomas
View Gregory Thomas Profile
Gregory Thomas
2013-05-29 16:43
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Thank you, Mr. Chair.
I would like to thank you all for allowing me to join you today. I'd also like to thank Brent Rathgeber for proposing Bill C-461. Mr. Rathgeber has shown character and courage in standing up for his beliefs and to his caucus when he has nothing to gain politically or personally by supporting this bill. This is evidence that principles are still alive and well in the House of Commons, and this gives us at the Canadian Taxpayers Federation hope that this bill will lead the government in the right direction.
My name is Gregory Thomas. I am the federal director of the Canadian Taxpayers Federation. We are a federally incorporated, not-for-profit citizens' group dedicated to lower taxes, less waste, and accountable government. We represent over 84,000 supporters across Canada. I am here on behalf of our Taxpayers Federation and our supporters to defend the current iteration of Mr. Rathgeber's bill.
We believe that all governments should stick to their founding tenets: transparency and accountability to the people. When administrations base their governments on these two seemingly simply ideas, it benefits them, their supporters, and everyone in between. More accountability to the public gives taxpayers the rights they deserve—to know who is being paid with their tax dollars and how much of our money they receive.
Bill C-461 would cause the government to disclose all earnings above $188,000. We believe this is a necessary shift in federal disclosure policy. Although in a perfect world every penny paid out by the government would be public information, we believe Mr. Rathgeber's bill pushes the government away from its self-imposed opaqueness and pushes the government into disclosure policy that will greatly benefit all Canadians.
This bill in its current state, we feel, does not go far enough, but the enthusiasm and hard work put in by Mr. Rathgeber makes up for this and gives us hope that other MPs will push for further reforms in the future. That being said, there have been criticisms of these amendments from all sides of the House, and I would like to address each of them.
First, there is concern regarding the number of people who would land above the $188,000 salary disclosure limit. Their concerns have centred on the number of people whose salaries would be disclosed. We believe this is a non-issue in this discussion. Government employees are all accountable to the public precisely because we sustain their salaries. To suggest otherwise takes away from the real issues affecting Canadians: government accountability and transparency.
We hear this from the government, and, quite frankly, it confuses us. I'm not the first one, nor will I be the last, to reference the current Senate expenses scandal involving former Conservatives Mike Duffy, Pamela Wallin, Patrick Brazeau, and former Liberal Senator Mac Harb. If the government allowed us access to the records and documents relating to their expense claims, this wasteful, unaccountable spending could have been nipped in the bud before it spiralled out of control into a $90,000 cheque with many reputations tarnished.
The same will go for this bill. If we see what government employees are earning, we can stop unreasonable salaries, benefits, and pension entitlements before they spiral out of control. It should be clear that this would help any government avoid embarrassment and scandal, while ensuring taxpayers are being treated with the respect they deserve.
The other major criticism relates to the effects of this bill on the Canadian Broadcasting Corporation. Again, we believe this takes away from the real issues surrounding the amendments. The CBC is not the only affected crown corporation. All crown agencies, from the Atlantic Pilotage Authority to VIA Rail, are covered in this bill. In fact, there is a specific provision in this bill that would allow the CBC to withhold information that threatens its independence, and it would be subject to a test that could be tried in the courts.
We believe there are plenty of members in the official opposition, as well as the Liberal Party, who genuinely support the spirit of this legislation. I would simply plead with you not to get caught up in the sideshow that relates to the CBC, but rather focus on the real issue, which is accountability, transparency, and waste.
Now, you may be asking yourself, how exactly does federal disclosure policy help the average taxpayer, the average citizen? The fact of the matter is this: if we can see what crown CEOs are making and what their job descriptions are, we can avoid potential scandals before they spiral out of control.
You may believe that not every Canadian pays attention to the salaries of government officials. It's a valid assumption, and I don't deny it. However, we still owe it to taxpayers to treat their dollars with dignity. Even if every Canadian on every main street isn't going to file an access to information request, you can be assured that the Taxpayers Federation, as well as other advocacy groups for free press or free media, will be watching vigilantly to see how taxpayers' dollars are spent.
We're here to ensure that the government operates within reasonable limits. The day we stop respecting a person's money because they don't have the time or resources to be involved in the same manner you are, I believe, is the day we lose our moral authority to levy taxes.
I hope my testimony has shed some light on this issue. Canadians deserve the best from their government, and we believe the public's concerns, until this bill arrived, have been falling on deaf ears.
We commend Mr. Rathgeber and all members who support this legislation. You are the people who listen to Canadians and who are working for positive change in the stewardship the government shows over our tax dollars.
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Stephen Taylor
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Stephen Taylor
2013-05-29 16:50
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Thank you, Mr. Chair.
The National Citizens Coalition is a supporter-based organization founded in 1967 and counts tens of thousands of supporters in its ranks. Our organization is founded upon the principle of more freedom through less government. We advocate on issues regarding the reduction of waste in the public sector for the more efficient delivery of services to Canadians.
Government accountability is very important to our supporters, and indeed to all Canadians. Whenever taxpayer dollars are in the mix, we believe on a philosophical level that Canadians deserve transparency for where those tax dollars go and accountability by those who spend them.
Recent scandals in the Canadian Senate with regard to how our senators are spending their housing allowances serve to underscore the need for transparency and accountability in our public institutions. Canadians lose faith in their institutions when those institutions abuse the public trust. Since human fallibility seems to be fairly consistent, the system must account for it, and accountability measures must be built in. We are here to provide testimony in support of Bill C-461. The CBC and public service disclosure and transparency act is an important piece of legislation to bring transparency and accountability to the spending of public dollars at the Canadian Broadcasting Corporation. The CBC is the recipient of over $1 billion taxpayer dollars every year.
Section 68.1 of the Access to Information Act is deficient, in our view, because the CBC has used it as a blanket exclusion to allowing oversight of how it spends public money. The Information Commissioner, the Federal Court, and the Federal Court of Appeal all agree to the limitations of section 68.1 as written. Further to the changes to the Access to Information Act, the legislation also makes other important changes to current statutes.
Canadians have been well-served by the so-called “sunshine list” in provincial jurisdictions, which list salaries and expenses of public servants. Unfortunately, such a list does not exist federally, and this legislation does not go far enough, in our view, in establishing such a list. Mr. Rathgeber's middle measure, however, is to provide specific salary figures and expenses on an individual on the federal payroll upon request.
Also troubling is the proposed amendment by this government to raise the threshold for the reporting level. In Ontario, for example, we benefit from disclosure of salaries of $100,000 and above. Mr. Rathgeber suggests a federal list should require disclosure at or above DM-1. We implore the members of this committee to resist pressure to raise the threshold from Mr. Rathgeber's proposed figure. Ideally, though, we'd like to see the disclosure set at around $100,000—perhaps wishful thinking.
Also less than ideal is the per request mechanism. We hope the committee will see the benefit of full and automatic disclosure of salaries, expenses, and bonuses on a public website in a machine-readable format. The world is moving to the open data model of governance. I note that Canada has fallen to 55th place in the world for freedom of information.
Canada is watching what its legislators do in this place. As scandal looms regarding the abuse of taxpayer dollars, some have suggested abolition of the Senate. Transparency provides an automatic mechanism that helps protect against those who would abuse the public's trust. Such transparency does not exist at the CBC.
The National Citizens Coalition's view is the privatization of the CBC. This isn't a big secret. I know this view is not yet shared publicly by many in this room. However, if the CBC is to receive public dollars, it suffers a legitimacy gap when it refuses to disclose how those dollars are spent. For those who do believe in a public broadcaster, you bring legitimacy to it as a public institution when it is accountable to the public for how it spends our money.
Regarding the CBC-related amendment to this legislation, that is, to include an exclusion for journalistic source protection while allowing for an injury-test exemption on programming-related information disclosure, this sounds acceptable in principle. However, the CBC has acted in bad faith on previous access to information requests, claiming blanket exclusion under section 68.1 of the Access to Information Act. The Information Commissioner has taken the CBC to court at least twice on this matter. We are concerned that the CBC will use any loophole to protect against reasonable disclosure.
We believe that the voting public is the best judge for how its money is spent. We do believe in less government; many of you believe in more of it. However, shrouding this information from the public view is not an honest mechanism for protecting government largesse. Indeed, it delegitimizes the view that advocates for it in the absence of such disclosure.
Government members may be looking to amend this legislation to raise the reporting thresholds and ranges for disclosure with respect to public sector salaries and bonuses. This will put more data out of reach of the public on how public dollars are spent on public services.
l'm told that this legislation will pass with such an amendment. Indeed this bill faces a fork in the road. If this legislation fails because it lacks this particular amendment, it will be scandalous for the majority governing caucus. This is legislation that calls to the very heart of the conservative base. Such transparency is a core theme of why conservatives elect Conservative Party candidates to serve in Ottawa.
If this legislation is amended to raise the disclosure limit and passes, it will be a watered-down, paler version of itself. I implore the government members to resist amending the disclosure threshold, because recent troubles facing this government on accountability issues provide the impetus for passing the legislation that we small-c conservatives desire.
With that, I welcome your questions on this presentation.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-05-29 17:14
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What would Stephen Harper have said about someone in the PMO giving a $90,000 cheque to a sitting parliamentarian?
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-05-29 17:14
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What would Stephen Harper say, as president of the National Citizens Coalition, about accountability? Who would be accountable for those actions?
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Stephen Taylor
View Stephen Taylor Profile
Stephen Taylor
2013-05-29 17:14
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I can't speak for Stephen Harper, but I know the National Citizens Coalition regards the issues of accountability and transparency as very important.
If members of this committee want transparency and accountability, I think they will support this legislation. I don't think transparency and accountability can apply to the organizations or institutions that are politically expedient for any particular party. I think this with respect to the entire public service and the entire government. We should seek to apply accountability and transparency no matter how comfortable or uncomfortable it is or how advantageous or disadvantageous it is for any particular cause. The cause of transparency and accountability is for the Canadian people, not for any one party.
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View Scott Andrews Profile
Ind. (NL)
View Scott Andrews Profile
2013-05-29 17:19
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Mr. Taylor, when Stephen Harper was president of the National Citizens Coalition, if a matter became before Parliament, wouldn't he be calling for more accountability and more openness and transparency, as is in Bill C-461?
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Stephen Taylor
View Stephen Taylor Profile
Stephen Taylor
2013-05-29 17:19
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In fact, I sit before you today at this committee calling for more accountability and transparency in the public service and in government. In the spirit of that, I encourage you to support this legislation.
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Maryse Bertrand
View Maryse Bertrand Profile
Maryse Bertrand
2013-05-27 15:37
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Thank you, Mr. Chair.
Chairman, members of the committee, on behalf of CBC/Radio-Canada, I would like to thank you for the opportunity to be here today to discuss our concerns about Bill C-461 and its potential effect on the public broadcaster.
We are concerned that this bill as currently drafted will have some unintended consequences that may undermine CBC/Radio-Canada's ability to do its job as mandated by Parliament.
First, the bill would remove the current protections for journalism programming and creative activities under the Access to Information Act. There was much discussion in 2010 and 2011 about section 68.1, which is the exclusion for these activities, and how it needed to be clarified. In fact, it has been clarified. In November 2011, the Federal Court of Appeal made it crystal clear. The Information Commissioner can review documents held by CBC/Radio-Canada to determine whether the exclusion applies, except when it comes to journalistic sources.
I would like to read what the court of appeal said:
...the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.
That decision is extremely clear and at the time, both CBC/Radio-Canada and the commissioner expressed their satisfaction with it. The government, in its response to this committee's study, wrote that the decision, and I am quoting: “settled the dispute between CBC and the Information Commissioner”.
Indeed, since then, we and the commissioner have been working together to resolve the files which had been awaiting the court's decision. As you have heard from the commissioner, that work could be completed by the end of this year and we are collaborating closely with the Commissioner's Office in order to meet our goals.
This bill is proposing to do away with 68.1 completely and to replace this exclusion with an injury-based exemption. That change will introduce a great deal of uncertainty regarding its application as the commissioner, CBC/Radio-Canada and third parties will have to debate not one, but two elements now: whether the material is journalistic, creative or programming information, and secondly, whether the release would prejudice the corporation's independence. This will be the case even where there are confidential sources. We are loosing ground, going backwards, where sources are concerned.
Introducing an additional requirement of “prejudice to independence” which is untested in any current case law in Canada will inevitably bring us to a new level of uncertainty that will likely require several cases and years to resolve before a sufficient body of legal decisions exist to give us all the necessary guidance.
Parliament must balance the desire for more access to information for federal institutions, with the requirement that media organizations such as ours operate effectively and independently.
The specific protections in both the Broadcasting Act and Access to information Act for journalism, programming and creative activities, exist to ensure independence.
Incidentally, those protections are not unique. As the commissioner pointed out in the comparison document that she shared with you in 2011, public broadcasters in Ireland, England, and Australia, all have specific exclusions from their access to information laws for their journalism programming and creative activities, and all without any test in order to demonstrate a negative impact on their independence. Why would Canadians want to change that for their own public broadcaster? Why is such a change necessary when CBC/Radio-Canada is among the strongest performers under access to information?
Here are some facts about that. We have taken the lead among organizations in posting on our website much of what we release under access. That's in addition to the board minutes and the business travel and hospitality expenses that we post proactively. CBC/Radio-Canada earned an A from the commissioner in her most recent review for its performance under the act. Last fall, the corporation was recognized for improving transparency and accountability in the 2012 IPAC/Deloitte Public Sector Leadership Awards.
But that accountability goes beyond access to information. Every year we provide detailed financial information to the CRTC, which oversees our licence conditions. Every year the Auditor General of Canada signs off on our financial statements. Every five to 10 years he conducts a comprehensive special audit. In his most recent audit tabled in Parliament this year, the Auditor General gave CBC/Radio-Canada a clean audit opinion. That's the best result a federal agency can obtain.
We also report to our minister, to parliamentarians, and to Canadians through our corporate plan, our annual report, and our quarterly financial statements published on our website. We also have an independent board of directors, including an audit committee and a governance committee, all appointed by the government to oversee our budgets and our operations. It's their job to ensure that our programming and journalistic resources are being spent wisely.
This means while we are accountable under access to information for the general administration of our corporation, the law also draws the line at publicly releasing those things that would undermine our independence, or prejudice our competitive position—things like how much Peter Mansbridge gets paid, or how much we paid for the upcoming Olympics, or the details of our promotional strategies for new shows. For those things, it is the responsibility of our board of directors to protect both the public interest and the corporation's arm's-length independence.
There are two other unintended defects of C-461 I would like to mention with respect to proposed changes to the Privacy Act. These are the consequences I would now like to discuss.
First, the bill proposes to strip away the existing Privacy Act protections for journalism, programming and creative activities—but only for CBC/Radio-Canada. It would allow the subject of a CBC/Radio-Canada investigation to demand all information about them held by one of our journalists, even before we broadcast. Only CBC/Radio-Canada journalists would be subject to this provision. You can imagine what this would do to the investigative journalism that Canadians value.
Finally, with respect to salaries, C-461 proposes to make public the exact salary of the highest earners working for a government institution—rather than the salary ranges of their position, which is the current law. This has a much broader impact than just on CBC/Radio-Canada.
The Privacy Commissioner has established four tests to determine whether an invasion of privacy is justified, and one of those tests is whether there is a less privacy-invasive way of achieving the same end. The commissioner has put it this way:
...disclosing salary ranges or aggregate salary amounts for relevant groups, as opposed to specific salaries of individuals, could prove just as effective in achieving enhanced transparency and accountability without incurring the corresponding loss of individual privacy.
In our case, we would suggest that the combination of our salary ranges being public—they're available proactively and under access to information—the aggregate of our senior executive salaries being available in our annual report, and a specific salary being the express responsibility of our board of directors, all of that achieves the goal of enhanced transparency and accountability. It does so without undermining our ability to maximize public value in our highly competitive business environment where other broadcasters' salaries are protected.
Should CBC/Radio-Canada be accountable? Absolutely, and it is. Should there be oversight? Absolutely, and there is. But in addition to accountability and oversight, CBC/Radio-Canada needs to be able to do the job it is being asked to do by Parliament. In our view, this bill will not help us do that.
Thank you very much.
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View Brent Rathgeber Profile
Ind. (AB)
Thank you, Mr. Chairman.
I'd like to assure the members that if they don't have sufficient time to question me on this important piece of legislation, I'd be happy to return at any time.
Mr. Chairman, honourable members of the committee, it is an honour for me to appear before your committee this afternoon to speak to private member's Bill C-461. I have provided committee members with a backgrounder describing the contents and the need for Bill C-461, the CBC and public service disclosure and transparency act.
Members, the bill has two purposes. The first is to correct a deficiency within the current section 68.1 of the Access to Information Act, which provides an exclusion for information under the control of the CBC relating to journalistic, creative, and programming activities. However, this exclusion is then subject to an exception for matters of general administration.
This confusion of an exclusion thereafter limited by an exception led to litigation between the Information Commissioner and the Canadian Broadcasting Corporation, with both the Federal Court and the Federal Court of Appeal siding with the Information Commissioner, reaffirming her right to review decisions regarding access. The courts indicated that the drafting of section 68.1 was “not a model of clarity”, and moreover was a “recipe for controversy”.
I agree with this assessment, and so does this committee. In March of 2012, this committee tabled a report after a study of section 68.1 of the access act, and accepted the Information Commissioner’s recommendation that section 68.1 of the access act be repealed and that the exclusion be replaced with a discretionary exemption.
Private Member's Bill C-461 reflects the recommendation of this committee by providing a discretionary exemption on an injury- or prejudice-based test. Accordingly, any Canadian Broadcasting Corporation document that, if released, could reasonably be expected to prejudice the corporation’s journalistic, creative, or programming independence ought to be exempt from disclosure.
At second reading on this bill, members of the official opposition claimed that this legislation was somehow an attack on CBC.
Members, I assure you, it is not. In fact, this legislation is not about the CBC so much as it is about transparency and accountability.
The discretionary exemption based on an injury test approach expressly acknowledges that a public broadcaster must enjoy a degree of independence from government. But the Information Commissioner is not part of government; she is an officer of Parliament. I fail to see how allowing her to review decisions of the CBC regarding access to information requests constitutes an attack on the broadcaster. Similar to our collective roles as members of Parliament, the Information Commissioner plays an important role in holding government to account.
The second purpose of the CBC and public service disclosure and transparency act makes a substantive alteration to the Privacy Act. In removing the words “range of” before the word “salary” in the definition of exempt “personal information” in the Privacy Act, this legislation, if adopted, will allow for specific salary disclosure for the highest wage earners in the federal public service.
Currently only ranges of salaries are subject to disclosure, which is, I submit, adequate for low- and middle-income levels, but at the highest levels of income, the increments become so large as to become virtually meaningless.
For example, I have been advised that the current CEO of the Canadian Broadcasting Corporation earns in the range of $363,800 to $428,000. That range is $64,200, larger than the average taxpayer’s salary, and therefore, in my view, does not constitute meaningful disclosure.
Accordingly, if Bill C-461 is adopted and not amended, the specific salaries and responsibilities of upper management—defined in this bill as the lowest level of deputy minister, DM-1, and higher—will be subject to access to information requests, specifically salary disclosure.
This is important: this change would apply to the entire federal public service, all government institutions that are subject to the Access to Information Act. CBC is in no way being singled out.
The bill also expressly provides for disclosure of reimbursed expenses for all employees in a government institution.
Mr. Chairman, the government has signalled its intent to amend Bill C-461. With your consent, I would like to address both proposed amendments, although I appreciate that they have not yet been tabled.
The first is with respect to journalistic source protection. Some have argued that journalistic source protection is so sacrosanct that an absolute exclusion must be maintained.
I absolutely agree that it is important that a public broadcaster, any broadcaster, be able to assure its confidential journalistic sources that their identity will not be disclosed. But I dispute that an absolute exclusion is either appropriate or practicable.
Firstly, the Information Commissioner has unlimited power under section 36 of the Access to Information Act to compel production of such documents and things as she deems requisite to the full investigation and consideration of the complaint. Moreover, under subsection 36(2) of the access act, it provides that no document can be withheld from the Information Commissioner for any reason.
Accordingly, I am skeptical that an exclusion can be drafted that could coexist with the Information Commissioner’s seemingly unfettered powers to compel document production. Members will recall that the current attempted exclusion in section 68.1 was the basis for protracted litigation between the Information Commissioner and the CBC.
Moreover, as the Information Commissioner herself testified when she appeared in front of this committee on March 8 regarding the estimates, journalistic source privilege is not absolute. The Supreme Court of Canada said so recently in its 2010 decision of R. v. National Post. The court held that journalistic source privilege is not a class privilege; it is fact-specific and therefore must be examined on a case-by-case basis to determine if and when it applies.
Who is to determine if Professor Wigmore's four-pronged test, which has been supported by the Supreme Court, is satisfied if the CBC is to be granted an absolute exclusion? The obvious answer is nobody. Is CBC to be made both judge and party to access to information requests? Certainly not.
As the Information Commissioner testified here two weeks ago, decisions of information officers must be reviewed, and as the Federal Court said in the Canadian Broadcasting Corporation v. Canada (Information Commissioner), “Disclosing records to the Commissioner does not amount to revealing them.” This is an important point. Members should not be misled into believing that having the Information Commissioner review documents will somehow lead to their disclosure. The Information Commissioner will recommend against disclosure when CBC has been able to demonstrate injury or prejudice.
The second matter that the Parliamentary Secretary to the Minister of Justice signalled the government wanted to amend was the benchmark at which federal public service salaries would become subject to disclosure. The parliamentary secretary indicated in the House that the government believes that the highest level of DM-4 would be a more appropriate benchmark than the lowest level of DM-1. In real dollar terms, amazingly this would move the disclosure benchmark from $188,600 to $319,900.
However, this is not the entire story. As senior public servants are entitled to maximum performance awards, otherwise known as bonuses, it is conceivable that at the DM-4 level, the said mandarin could earn a maximum performance award of up to a further 39%—although it would be discretionary. According to my math, if a DM-4 earns $319,900, plus a maximum bonus of 39%, which is $124,761, his entire compensation would be $444,661. However, if the government is successful in amending this piece of legislation, taxpayers will only be mindful that the DM-4 earns in the range of $272,000 to $319,900.
Members of this committee should ask themselves, does this constitute meaningful disclosure? In my view, it does not, and I strongly recommend that members resist the government’s attempt to gut this bill.
Mr. Chairman, in conclusion, Canada has had access to information legislation in force since 1983. Canada was once a leader in providing access to government information and documents, but sadly, we are becoming laggards. Internationally, we are currently ranked 55th out of 93 countries in terms of our access laws. Moreover, the Centre for Law and Democracy, a think tank, says that Canada is falling behind all of the provinces and ranking behind most of them in terms of openness. Ontario, British Columbia, Saskatchewan, Manitoba, and Nova Scotia all have salary disclosure legislation that is more transparent than this proposed bill, even if you pass it unamended.
Mr. Chairman, in March 2004 a former government announced new policies that mandated publication of all contracts with the federal government over $10,000. I find it irreconcilable that proprietors and companies who contract with the Government of Canada for as little as $10,000 will have their names and contracts published on a public website, but that a senior federal executive or public servant earning over $440,000 is protected by Canada's privacy laws.
Members, again, I invite you to resist the government’s attempt to remove both the heart and the teeth of this private member's bill.
Transparency and disclosure allow taxpayers to compare the performance of an organization to the compensation given to the senior people running it. It allows taxpayers to know how their tax dollars are being spent. By allowing disclosure, the public will serve as a critical check on government expenditures and an effective deterrent to any government department or official tempted to treat taxpayers disrespectfully. Transparency, admittedly, is seldom in the interest of the government; however, it is always in the interest of the taxpayers whom we, as members of Parliament, represent.
Bill C-461, the CBC and public service disclosure and transparency act, promotes open and transparent government and holding government to account. It is also a small step, albeit a very small step, in improving the federal government's growing reputation for opaqueness.
Exclusions for government information prevent Canadians from holding their government to account, which is fundamental to democracy. Knowledge is power, and holding government to account demands that knowledge and information be available to Canadians. Holding to account leads to the establishment of trust—trust that there is proper stewardship over public resources. Opaqueness, however, leads to mistrust, or at the very least suspicion that there is not proper stewardship of public resources. Accordingly, any attempt to weaken this bill and its attempt to increase access to information and transparency will lead to mistrust and suspicion.
As U.S. Supreme Court Judge Louis Brandeis famously said that sunlight is the best disinfectant.
Mr. Chairman, Canadians deserve to have the light shone on government and government information, and I encourage all honourable members of this committee to pass Bill C-461.
Thank you, Mr. Chairman. I look forward to members' questions.
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View Pierre Nantel Profile
NDP (QC)
Mr. Rathgeber, do you think that your bill will be of benefit first and foremost to Canadians, or, as it happens, to certain companies that make a lot of access to information requests?
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View Brent Rathgeber Profile
Ind. (AB)
I think it will benefit taxpayers. CBC has its detractors, to be sure, but part of that is from the suspicion that individuals have been frustrated when they've attempted to get information concerning how the CBC operates.
As I said in my opening comments, I believe that transparency is not the enemy of a government institution; I believe that opaqueness is. I believe that by opening up your books, figuratively, which in this context means allowing access to information requests to be processed when appropriate, restores public confidence in the institution. It restores confidence that the public institution is a good steward of taxpayers' resources. My belief is that opaqueness does quite the opposite.
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View Patricia Davidson Profile
CPC (ON)
Thank you very much, Mr. Chair.
Thanks very much for being here, Mr. Rathgeber, and for presenting your Bill C-461 to us. I certainly appreciated your presentation and the outline that you went through as you explained what your intent was with the bill.
I know that you're well aware that this committee did an extensive study of section 68.1 of the Access to Information Act when we were doing an earlier study. We recommended that section 68.1 be amended to comply with the Federal Court and Federal Court of Appeal's decisions on the matter of 68.1.
Do you think that your bill responds to the committee's recommendations? Would you also tell me why you feel that way or not?
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View Brent Rathgeber Profile
Ind. (AB)
I absolutely do. The Information Commissioner testified that she does not fancy exclusions. She prefers exemptions because an exclusion takes the subject-matter out of the operation of the act and, therefore, takes away any ability for her to objectively review the decisions of the information officers.
I can't take credit for the discretionary exemption. The credit for that belongs to the Information Commissioner who is going to testify in front of this committee next week.
I'm trying to find her exact words, but it's almost verbatim what the new section 28.1 would say. This committee recommended that section 68.1 of the Access to Information Act be repealed in accordance with the expert testimony heard during the study. In so doing, the government should consider international models as presented by the Information Commissioner.
It was the Information Commissioner who came up with the injury-based test and changed the exclusion to a discretionary exemption. I don't take credit for that. There has been some slight wordsmithing with respect to her testimony in front of this committee. But yes, I do believe this amendment is in accordance with the committee's study, which was an important study in light of the litigation between the Information Commissioner and the Canadian Broadcasting Corporation.
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View Jean Crowder Profile
NDP (BC)
View Jean Crowder Profile
2013-04-23 9:10
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That's where I'm going on this. It's not that I think this is a great way to do it, because I don't.
With regard to part (c) of your recommendation 3, “A provision that reserves residual authority and jurisdiction to the Minister under s.43 with respect to intestacies still governed by the Indian Act”, the legal opinion that we've had said this would involve an amendment to clause 7 so that paragraphs 43(c) and (d) would not be included in the repealed sections 42 to 47 to allow for the continuing operation of these sections, given that the minister's power contained in section 43 relates to intestacy. Is that what you're suggesting?
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Christopher Devlin
View Christopher Devlin Profile
Christopher Devlin
2013-04-23 9:11
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That's entirely what we're suggesting. Because of how the Indian Act is written and because the minister has exclusive jurisdiction under section 42 of the Indian Act, the following sections, both the wills and the estates stuff, is all combined together. If you get rid of sections 42 and 43 vis-à-vis wills, you're also getting rid of that exclusive jurisdiction vis-à-vis intestacies.
Because of the fact that we don't see the public trustees stepping in as sort of that final backstop to assist in the intestacies of Indians ordinarily resident on reserve, we see that there's a real need to keep this jurisdiction and retain it for the minister. So, yes, paragraphs 43(c) and (d) of the Indian Act should remain in the Indian Act. Even if wills are removed, the jurisdiction over estates should remain.
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Michael McKinney
View Michael McKinney Profile
Michael McKinney
2013-04-23 10:39
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I'll just make a few comments, following up on Chief Twinn.
I've worked with the Sawridge First Nation for over 26 years. So while I'm not first nations myself, I've had a lot of experience with the Indian Act. The act is quite short. It's only 122 sections. It looks very simple on its face, but over time it's gotten very thick and heavy with cases and interpretations. There are still provisions in it that, if you read them, are not true because cases have overturned them or struck them out, and Parliament hasn't cleaned that underbrush up yet.
There are a number of issues. You have to be careful when you try to make changes to that very complicated regime that has evolved over time because unintended consequences can happen.
In clause 2 of the bill, it talks about collaborations with first nation organizations. The chief has commented on that. There really should be consultation with first nations. It shouldn't be a collaboration and it shouldn't be with organizations. It's the first nations who the duty to consult is owed to, and that's who should be consulted. Prior to enactment or changes to the Indian Act, the first nations are the ones who are affected by the Indian Act, and they represent their people.
You've already commented on the barter and trade. If you take away ministerial approval, who approves the trade of materials? The resources that are on reserves will just be left in a vacuum. There should be a transition. Perhaps the chief and councils or some other system could be put in its place. Sometimes if a chief and council were put in the place of the minister, at least there would be somebody there to approve changes.
Under wills and estates, the biggest concern that I would have would be the repeal of subsection 44(3) and paragraph 46(1)(d). Both deal with lands. Those sections basically said the province didn't have jurisdiction to deal with the devolution of real property in reserves. Now, with the repeal of those sections, are we saying the provincial law applies to reserves? That is a transfer of jurisdiction, and I believe the CBA addressed that earlier.
The repeal of section 85.1 may cause problems for first nations. Sawridge doesn't have an intoxicant bylaw, but there are first nations that would definitely be affected if suddenly that power is taken away. I'm certain a court would say that power is not inherent in section 81. Otherwise why was section 85.1 passed in the first place? That history is not going to be erased.
One of my biggest concerns is proposed section 86.1. It requires the publication of laws. We've taken away the requirement of the minister to approve bylaws. But now in a very paternalistic way we've said, here's how you're going to publish your laws, instead of leaving it up to the first nation governments to publish their laws in a way that is appropriate for their first nation. It's quite onerous because if you have a thick land use bylaw, and you have to publish it in a local newspaper, that could be quite costly, and probably not too effective because the people who read that local paper might be largely uninterested.
Those would be my comments.
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View Brent Rathgeber Profile
Ind. (AB)
Thank you.
Thank you for your testimony.
In your opening comments you indicated that in your opinion first nations ought not to be held to a higher standard of accountability than other levels of government. I'm inclined to agree with that statement, but I'm curious. There are two ways to remedy the situation. One is to bring other levels of government up, or, alternatively, if this piece of legislation were to hold first nations to a higher level of account, to lower them.
I wonder whether you have an opinion as to where the bar ought to be set with respect to all levels of government, agreeing with your proposition that first nations ought to be held to the same level—not higher or lower—of accountability as other government levels.
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Harold Calla
View Harold Calla Profile
Harold Calla
2013-04-16 9:20
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Wow. It's like I'm taking a poison pill here.
First of all, I don't think you can ask first nations to lead. Initially, first nations need to be held accountable at the same level. Does the bar need to be raised? I think if you asked every Canadian...yes, the bar does need to be raised. We have auditors general, we have budget officers, we have all kinds of people who provide oversight to first nations governments, and we see all kinds of challenges that are being raised as a result of that oversight.
Having spent 20 years of my life in and out of Ottawa, and I've been here probably about two months a year since the early nineties, I've had the opportunity to observe our process, unlike most Canadians. I wish it could be less adversarial, because if it were less adversarial we might be able to get some things done.
If there's a problem here, it is that if anyone were to come forward and acknowledge that there needed to be improvements, I wouldn't want to be the government sitting in question period.
This is a matter that everyone has to embrace—saying we want to improve accountability. It can be, but it has to be done in the context of a cooperative effort among all parties in the parliamentary system. Then, as that bar gets raised, other orders of government should also be required to rise to that level. But you can't ask first nations to lead something other orders of government aren't leading, because we don't have the capacity or the resources to do it.
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View Carolyn Bennett Profile
Lib. (ON)
View Carolyn Bennett Profile
2013-03-21 9:26
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Do you think we should call the Prime Minister to this committee and see if he actually is going to get on with something meaningful?
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Michèle Audette
View Michèle Audette Profile
Michèle Audette
2013-03-21 9:26
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Please! He didn't accept a simple meeting with the GG and the chiefs of Canada. I doubt if he would come. But if he agreed to sit down, I'm sure people would make sure that he got the message that there's some willingness on our part, and on my part too, that we should have that dialogue.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 15:43
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Thank you, Dr. Zinger.
I've long been concerned about CSC's ability to provide a fair, accessible, and expeditious grievance system, as required by the Corrections and Conditional Release Act. In fact, my office was established in 1973 and has commented on the dysfunction of the internal grievance process every year since.
It bears reminding that my office was created in the aftermath of a bloody and deadly riot at Kingston Penitentiary in 1971. The commission of inquiry into that disturbance in 1971 concluded that the lack of a credible system to resolve inmate complaints was one of the major factors that led to that deadly confrontation.
My 2007-08 annual report provided a detailed review of the office's long-standing concerns regarding the Correctional Service of Canada's internal grievance system. Let me briefly summarize these concerns with respect to the legislative requirements for the Correctional Service to provide an accessible, fair, and expeditious inmate complaint process.
Over the years, my office has reviewed and investigated several complaints regarding inmate access to the internal complaints and grievance system. There is variation and inconsistency in the procedure for collecting complaints and grievances from locked boxes and in responding to high-priority grievances, such as segregation placements.
One of the most tragic cases involved the late Ashley Smith. Although all seven of her previous complaints regarding her conditions of confinement were rejected by the Correctional Service of Canada, Ashley made a final attempt, one month before her death, to improve her situation by placing one more complaint in a sealed envelope into the designated receptacle at Grand Valley Institution. Inexplicably, this high-priority designated complaint was only opened by the Correctional Service two months after Ashley died.
My office has raised persistent concern about the ability of the Correctional Service's grievance system to consistently render fair decisions. Extreme delays in providing responses to offenders can result in unfair decisions, even if the substance of the decision was correct. For example, taking six months or more to arrive at the conclusion that a segregation placement was unwarranted provides little relief to an offender that had to endure those conditions of confinement for that length of time.
As raised earlier, Ashley Smith initially filed seven complaints while in custody at Nova Institution. My final investigative report, entitled A Preventable Death, showed that all seven complaints were inappropriately designated as routine rather than high priority.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 15:46
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I concluded my investigation into Ashley's preventable death by stating:
The presence of a more timely, effective, fair and responsive internal complaints and grievance system within the Correctional Service could have significantly improved Ms. Smith's overly restrictive and dehumanizing conditions of confinement.
In my opinion, her complaints were inappropriately dismissed.
About 30% of inmate complaints are upheld—which effectively reverses the local or institutional decision that the complaint had no merit—at the second or regional level, or at the third or national level. This percentage is surprisingly high, and may account for the refusal of some wardens to uphold offender complaints at the institutional level. Wardens may find it more convenient to have their decisions reversed by regional or national authorities rather than to render decisions that may be unpopular with their own staff.
Over the course of several years, the Correctional Service of Canada has extended its timeframes for responding to inmate complaints significantly, virtually ensuring that the system is rendered unresponsive and ineffective. The current inmate grievance process is rooted in the 1977 Report to Parliament by the Sub-Committee on the Penitentiary System in Canada.
The timeline for the Correctional Service to respond to inmate grievances was initially set at ten working days for each of the four levels: 40 days from the initial filing to a written decision. In the late 1990s, CSC extended the timeframe from five to 15 days for priority grievances and from 15 to 25 days for other cases. More recently, CSC has attempted to address significant backlogs at the third or national level, to avoid being in constant non-compliance with its own policy, by once more extending the timeframes now from 25 to 80 days for routine grievances and from 15 to 60 days for high-priority grievances.
This means that today, a routine grievance can legitimately take, without any formal extensions, over 150 working days, or seven months, from initial filing to resolution at the third level. More importantly, in the instance of high-priority grievances, the number of days now exceeds 100, or almost five months. What is even more troubling is that if a formal extension is granted by the service, its policy states that the extra days for the extension are not to be counted. In effect, this means that a routine complaint can take one year, from start to finish, to wind its way through CSC's convoluted review levels and expanded timeframes. This is not safe or proper corrections.
As a result of the Ashley Smith investigation, I recommended that the Correctional Service immediately commission an external review of its operations and policies in the area of inmate grievances. The CSC eventually agreed, and commissioned Professor David Mullan from Queen's University to conduct an independent and expert review.
In his comprehensive 2010 report, Professor Mullan made 65 recommendations to fix CSC's grievance system. Despite being an excellent report, only a handful of his recommendations have been implemented to date, including a pilot project for mediators, some minor policy housekeeping, and some training.
Importantly, Professor Mullan also reviewed the issue of multiple grievers. All his recommendations in this area were limited to internal policy or operational changes. There was nothing identified—nothing identified—as requiring legislative reform. In fact, Professor Mullan only identified one issue requiring Parliament's involvement: the elimination of the second or regional level to shorten the overall processing of inmate grievances.
Concerns with CSC's management of its grievance system go well beyond how it deals with multiple grievers. In fact, I believe this bill detracts from the very real issues facing CSC. Bill C-293 sends a wrong message, as it trivializes inmate complaints and it reduces CSC's accountability.
Inmate concerns are a unique means to judge the professionalism and the humanity of our Correctional Service. Importantly, what can be viewed as frivolous can be rather significant upon review. What to most people would be very insignificant becomes, because of the nature of prison life, a matter of serious concern to inmates.
We should not be contemplating anything that would reduce CSC's accountability for operating a fair and expeditious grievance process.
Members here need to be reminded that there are already internal policy mechanisms in place to deal with frivolous and vexatious complaints. It appears rather heavy-handed, in my view, to use legislation where policy levers already exist.
I anticipate that Bill C-293 will not extinguish the concerns it seeks to address and will only add to, not subtract from, the Correctional Service's administrative burden. Expanding the law will not deter vexatious complaints. Good practice, good management, and implementation of CSC's existing policy would be more effective and less costly in the long run.
Grievances and policy compliance are the bread and butter of my office. In the last five years, we have received over 25,000 inmate complaints and have conducted more than 10,000 investigations. We deal with serial complainers, just as CSC does. We manage them within the existing legal and policy framework.
I encourage the committee to put this legislation on hold and expand its review to look at the entire CSC grievance system. My previous recommendations, and those of Professor Mullan, could inform legislative reform on the real issues confronting the Correctional Service. To that end, this committee could look at legislative reforms in the following areas: reasonable timeframes; the requirement for mediators; monthly mandatory face-to-face meetings with CSC parole officers; and eliminating the second, or regional, grievance level.
These proposals are far more likely to streamline the existing grievance process and enhance accountability than attempting to limit the access of a few multiple grievers. In an environment where use of force, inmate assaults, inmate injuries, self-harming behaviour, double-bunking, segregation placements, and lockdowns are all on the rise, it is important to remind Parliament that it may seem easy to dismiss inmate concerns, but history tells us that it can be dangerous and ill-advised.
Thank you again for your invitation. Thank you for your attention. I look forward to your questions.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 15:55
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The legislation that establishes my office, the CCRA, the same legislation that establishes the Correctional Service of Canada, gives me full discretion in how I deal with complaints. So I do have more flexibility, as we mentioned in our comments.
The Correctional Service of Canada has established, in fact, a four-level system. The Correctional Service of Canada, though, has never fully implemented all the options it has for dealing with inmate complaints.
Let me give you a couple of examples. If an inmate makes a complaint to a correctional manager on the floor of an institution, that can be dealt with rather informally. The warden has the ability to refer it to an outside panel. The warden also has the ability to ensure that an inmate committee is established within the institution. The correctional manager also has some discretion in terms of trying to informally manage that, and of course, we know from Professor Mullan's review, that there can also be expanded use of mediation as an informal conflict resolution process.
Instead, what we see are many complaints not being dealt with until they are well beyond the timeframe. They then generate a second complaint, the complaint being about the lack of response, which is then dealt with at the next level. Typically, that will not be dealt with at the next level in an expeditious way, generating less satisfaction and more complaints, which then create backlogs at the third level.
It is this continuous pattern of not dealing with matters at their lowest level, immediately, that in fact makes the problem so much worse.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:02
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I wouldn't mind making a comment or two. We also recognize that there are multiple grievers who take up a lot of time. There are also frivolous grievers. We get them, as I've mentioned. My contention is, and my experience demonstrates, that CSC has the tools they need to deal with them.
If you read the rest of Mullan's report, you'll see there's an underutilization of inmate committees, outside panels, and mediation. There is clearly frustration in the system. Because of the way the service is operating the system, inmates will add complaint to complaint to complaint because they're not getting their complaints resolved; they're not getting answers. The issue isn't whether or not there are frivolous complaints. The issue is not whether some inmates try to frustrate and damage the system. That's not the issue. The issue is how the service responds to them.
The current legislation, regulations, and policy framework give CSC the ability to deal with them without adding a legislative burden, which I believe is going to make it more difficult. It's going to add another layer. It's going to create more expense. It's going to generate judicial reviews. It's going to tie up wardens' hands in terms of designating and then justifying the designation of being frivolous or multiple or vexatious.
This is not going to address the problem. Somebody who is making multiple complaints because they perhaps have a mental health issue, because they're compulsive, is not going to stop because you've changed the CCRA.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:11
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Let me first go back to your earlier comments, because I'm not sure that I fully appreciated them or understood them.
There are many differences between what my office does and what an internal standards and practice officer does. There are also many differences between what my staff do and what a front-line correctional officer does. There are legislated requirements and obligations on Correctional Service staff, and legislated requirements on my staff.
So I'm not entirely sure of what your point was, but I will say this. My staff are also front-line workers who spend days inside institutions meeting with inmates and staff, and who have thousands of contacts with inmates face to face. It would be a mischaracterization of the work of my office to suggest that we do a paper review and write a one-page letter or a one-sentence letter. That's not our process. It may have been the process you were used to—
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:15
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There is a small number of offenders who burden the system. My advice to the commissioner has been to deal with those administratively, so that he can address the more legitimate complaints in a more expeditious manner.
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View Ryan Leef Profile
CPC (YT)
View Ryan Leef Profile
2012-04-24 16:16
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—if this legislation went through, wardens may make review decisions essentially to placate staff and have it overruled. Do you have any examples of wardens currently making review decisions simply to placate their staff and alleviate the burden of decision-making?
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:16
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Yes, it was my comment, and yes, I do. Probably the best evidence I can share with you is simply to look at the number of complaints that are then upheld at the third or the national level once they have been denied at the regional level. We often will find that as complaints move through the chain, it's really headquarters that will finally take a stand and apply a more firm policy lens to the complaint.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:23
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My fear is that if we do anything legislatively to reduce Correctional Service Canada's accountability to deal with complaints in a legitimate way, we will be doing a disservice to the rule of law within our correctional institutions. It is very important that complaints be seen at the outset as being legitimate until they're disproved. You shouldn't make the assumption at the outset that you're dealing with somebody who's frivolous or vexatious, even if they may have a history of multiple complaints.
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Howard Sapers
View Howard Sapers Profile
Howard Sapers
2012-04-24 16:32
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My ability to dismiss a complaint is rooted in the role of the ombudsman and gives me independence and discretion. We're not talking about accountability for complaint handling. We're talking about accountability for conducting yourself according to the rule of law. CSC has a different legislative mandate than my office does or the parole service does or the police service does, and that mandate requires them to be accountable.
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View Brian Storseth Profile
CPC (AB)
Thank you very much, Mr. Jean, for your question.
I'd also like to thank you for your help with my private member's bill. You've been a strong advocate for freedom of expression in our country. It is appreciated by our ridings.
Mr. Jean and I are in neighbouring ridings, so people in northern Alberta get Brian and Brian, whether they like it or not.
At the end of the day, you raise an excellent point. There are actually a couple of points in there. It's not only about the extensive amount of judicial training you must have to become a judge in our country, the extensive amount of training to work within the Criminal Code and the criminal justice system in Canada, and how it's obviously not as extensive for this quasi-judicial body. I think the most pertinent point you raise is the fact that this is a quasi-judicial body.
This is not a body that is open and transparent. This is not a body that follows the rules of evidence we have and that exist in the court system in Canada. It is very closed. I've pointed out that intent is not an allowable defence. Truth—even if what you're saying is actually true—is not an allowable defence.
Also, you do not have the right to an attorney. That's something I've always really taken umbrage at in the legislation. It's like putting an amateur hockey player who plays backyard hockey up against a team of professional hockey players every day and then being surprised that the professionals win every game. It simply is not fair. That's not how our court system, as you rightfully pointed out, operates in our great country.
I agree with you in principle on both of those points. It looks like you want to ask me another question, so I'll cut it short.
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View Brian Storseth Profile
CPC (AB)
You raise some very valid points when it comes to that. I can't disagree with your preamble at all. I would perhaps add only that hate crime is a serious offence—
Mr. Brian Jean: Very.
Mr. Brian Storseth: —and it's a serious offence that should be investigated by police officers and ruled on by judges with adequate training, as you have said. Also, it should be put forward in an open and transparent system, which is our Criminal Code of Canada. To do otherwise I think would diminish how serious an offence this truly is.
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View Brian Storseth Profile
CPC (AB)
Thank you very much for your question.
On the first part of your question—why repeal it—I believe, as I've stated, that the core principle of this bill is to repeal it because it does infringe on our Charter of Rights and Freedoms. Paragraph 2(b) of the Charter of Rights and Freedoms states that “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, is enshrined in our charter.
The debate really isn't about whether or not it impedes our own charter. The debate that has been put forward by the NDP opposition is to try to justify why that happens. I think we need to repeal this because not only has it not worked practically in the implementation—I don't believe that it has adequately protected against hate speech in our country—but I believe it infringes significantly on freedom of speech and expression, which is a cornerstone of our society.
One of the issues—and it's what I have heard in debate in the House and once again here today through your questions—is this reinforcement of two-tiered hate speech law in our country, one tier being what is currently in place under section 13 of the Canadian Human Rights Act, and the second being the Criminal Code. But I actually take umbrage at that because, as Mr. Jean has just stated so well, these are serious cases, and there shouldn't be different levels of hate speech in our country.
I don't believe that you can be prosecuted for a hate speech and only get, say, a $5,000 fine and that's adequate. If it's hate speech, it should go under the Criminal Code of Canada and it should be prosecuted to the fullest extent of the law. I believe that a two-tiered system actually takes away from that and minimizes it.
I believe these are serious offences that need to be investigated by a police officer. They need to be looked at in an open and transparent system that has all the checks and balances that we Canadians expect, and not by some quasi-judicial body where, at the end of the day, you don't even see the light of day of it, and by a quasi-judicial body that in some cases has rules of evidence that ebb and flow depending on who is presiding over the case. I don't think that is the right way to go. I believe we need an open and transparent system. I believe this should be looked at under the Criminal Code of Canada.
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