:
I call the meeting to order.
This is meeting number 22 of the Standing Committee on Access to Information, Privacy and Ethics. Our orders of the day--and there are three--are pursuant to Standing Order 108(3)(h)(vi), a study on Access to Information Act reform.
Appearing before us this morning is the Honourable Rob Nicholson, Minister of Justice. He is accompanied by Mr. Denis Kratchanov, director and general counsel, information law and privacy section.
Welcome, gentlemen. I appreciate your taking the time to be with the committee.
Minister, as you know, the committee has been working for some time on the issues of access to information and privacy. In one of the responses the minister gave us, he referred us to a document that was tabled in April 2006 in the House by the then justice minister, who is now the Minister of Public Safety.
That document never did make it to the committee. I wasn't the chair at the time--I don't think many people here were on the committee at the time--it was Tom Wappel. But that document was not referred by the House to the committee, and the committee really didn't become aware of it, but we have subsequently, Mr. Minister. I just want to assure you.
Our researchers have examined the elements of the document. They have concluded that substantively all of the items, at some point or another, have been considered by the committee, first of all in its initial report, and secondly, on the report that was coined the “12 quick fixes”, on which we received the original response from you, sir.
Subsequently we requested additional input on the specific recommendations that were made for the guidance of the committee. That is the reason we're here on both reports. The first item is on access, which is of the most significant interest to the committee.
We're in your hands, sir. I'm sure you have a few opening remarks. I'll leave it to you as to how you address them.
I'm appearing before this committee again on the topics of access to information and privacy in my capacity as Minister of Justice and Attorney General.
We have been very busy on a number of fronts, particularly with reforms to our justice system. We all have a stake in making sure the system works effectively and our citizens are safe.
We've made it a priority, of course, to tackle the whole question of crime. As you know, I've introduced a number of bills since March, bills that help protect children from online predators; tackle property crime and trafficking in property obtained by crime; impose tougher penalties for drug crimes, particularly in relation to gangs and organized criminal groups; and provide tougher sentences for fraud to help combat white-collar crime.
We are providing more tools for police and prosecutors to prevent and investigate terrorist activities. We're ending the use of house arrest for property and other serious crimes by serious and violent offenders. We are repealing the faint-hope clause that allows murderers to obtain early parole and gives them the opportunity to repeatedly increase their victimization of the families they have so badly affected. We're strengthening the legislation that handles violent and repeat young offenders.
In addition to this important and necessary group, our government has addressed other issues that affect Canadians, such as the Access to Information Act reform. Again, as the chairman pointed out circumstantially, our government has introduced laws that affect access to information. That, of course, is through the Federal Accountability Act, which makes a number of important and necessary improvements to the whole question of access to information.
Among other things, that particular piece of legislation greatly expands the number of entities covered by the act and strengthens it by providing for institutions to assist requesters without regard to their identity.
When the Federal Accountability Act was introduced in 2006, the government also tabled a discussion paper, which the chairman referred to. The paper raised a number of issues for your consideration in relation to the reform proposals of the former Information Commissioner, Mr. John Reid. The paper encouraged this committee to consider these issues and consult widely with interested stakeholders and affected government institutions.
When I appeared before you in 2008 and again in 2009, I urged the committee to take up a full-fledged study of the issues raised in the discussion paper. We believed that further study would provide an opportunity for this committee to shape further access reforms by calling on key witnesses and stakeholders in order to fully understand all views. The important work conducted by this committee on a broader basis would also provide a deeper appreciation of the impacts of possible access reforms.
As I said in a letter forwarded to you on April 29 of this year, I was pleased to note that the discussion paper has been recirculated to all members of this committee and you have conducted research on the contents of the paper.
This government takes seriously the issues of access to information and privacy. I'm here again to discuss the committee's work thus far and the work that, in my opinion, is still needed before further access to information or privacy reforms are made.
As you know, a year ago this committee tabled its report entitled, “The Access to Information Act: First Steps Towards Renewal”. The government reviewed the report with interest and noted that this committee endorsed 12 of Monsieur Marleau's recommendations. As required, the government tabled its response last fall, in October 2009.
It's worth noting that in his introduction to a March 4, 2009, submission to the committee, Monsieur Marleau wrote that “it is recognized that the Act is sound in terms of its concept and balance”. Mr. Marleau then went on to say that his recommendations addressed only the most pressing matters. This last point suggested to some that his recommendations could be quickly and easily implemented, which the government takes some issue with.
As stated in its response to the committee's report, it is the government's opinion that the nature of Mr. Marleau's proposals would require and should require extensive consultation with stakeholders.
For example, one recommendation would involve increasing the powers and mandate of the Information Commissioner to include reviewing legislative proposals and making decisions regarding requests for time extensions beyond 60 days. These proposed reforms would create a shift in the nature of the Information Commissioner's office from an ombudsman model towards a quasi-judicial model, which would not be consistent with other agents of Parliament. The government's view remains that implementing the proposals recommended in the committee's report would be neither quick nor easy.
Furthermore, several of Mr. Marleau's proposals could have cost implications, which in the current climate cannot be ignored. Although the economy is improving through sound fiscal management as set out in the economic action plan under the guidance of my colleague , we are in a period of fiscal restraint. So we must always be careful.
Turning now to privacy issues, about a year ago, this committee tabled its report “The Privacy Act: First Steps Towards Renewal”. As you know, this report provides the committee's recommendations regarding the Privacy Commissioner's 12 proposals for reform. The commissioner herself describes these as “quick fixes”. This committee's report supported five proposals and offered qualified support for one other. The committee also indicated that four of the 12 recommendations required further study.
Finally, you stated that the committee did not consider it a top priority to enshrine in the Privacy Act a requirement for government institutions to assess privacy impacts of new programs or systems. This is a cautious approach to the Privacy Act. The issues involved in privacy are complex and, more importantly, they require the balancing of the interests that are crucial for our democratic society.
For example, the Government of Canada must strike the right balance between national security and Canada's international obligations while respecting the privacy of Canadians. Indeed, the government alluded to this complexity in its response to the committee's report on the commissioner's tenth proposal, which recommended the strengthening of the provisions of the Privacy Act governing the disclosure of personal information by the Canadian government to foreign states.
As you know, a number of the Privacy Commissioner's recommendations proposed to enshrine current policy in law. In its response dated October 29, 2009, the government pointed out that policies have certain advantages over law. For example, the Treasury Board Secretariat issued a new directive on privacy protection and a renewed directive on social insurance numbers that clarifies accountabilities with respect to the management of personal information.
Since the government's response, and as I stated in my letter to this committee on April 29, the President of the Treasury Board has issued three new directives on privacy. They are: the directive on privacy requests and correction of personal information; the directive on privacy practices; and the directive on privacy impact assessment.
These directives provide detailed guidance and best practices for the day-to-day administration of the Privacy Act. They also represent an important development that ensures the privacy of Canadians continues to be adequately protected.
To conclude, it's the government's hope that this committee will continue to consider access and privacy reforms, bearing in mind the complexities they raise, and consult extensively with all relevant stakeholders in order to achieve the best possible results for Canadians.
Thank you, Mr. Chair. If there are any questions, I would be pleased to take them, and I am pleased to be joined by a true expert in this area for any of the technical aspects of both pieces of legislation, Mr. Denis Kratchanov.
Minister, as the minister responsible for the act, these questions clearly would fall under your purview in terms of responding to them.
We have had an exempt staff in the person of Mr. Togneri, under oath in front of this committee, say that he in fact broke the law. And my question, of course, is that if that in fact was the case, and you're the minister responsible for the act, how is it that Mr. Togneri is still employed with this government?
The minister responsible, Mr. Paradis, gave him informal authority when, according to the chief of staff of the Prime Minister, that was not to happen. How is it that we still have a minister who has not been held accountable if in fact this government says there is ministerial accountability for their actions?
A voice: Oh, come on, Judy.
:
It's not a point of order. It's a matter of debate--
Mr. Greg Rickford: It is.
The Chair: Mr. Rickford...
Mr. Greg Rickford: Yes, Mr. Chair?
The Chair: I'll just remind members that the chair has a responsibility to keep order and decorum and to make decisions. Those decisions are not debatable, but the recourse for any member would be to challenge the decision of the chair, and the committee will decide.
I don't want to have debates with anybody on these matters. All members will know that if they're going to use their time in ways in which they're not going to get information, it doesn't serve any useful purpose to anybody. They also have parliamentary protection on matters that they say here.
I won't judge any member on this committee. I have no authority to sanction or censure, and I won't, but I caution members to be judicious and not to overstep the bounds. We have rights, but with rights also comes responsibility.
That said, we have 30 seconds left in your time slot.
:
Good morning, Minister. We are very glad to have you this morning, especially since we have invited you several times.
I would like to ask you a question. As part of our study of the Access to Information Act and of other studies conducted by this committee, we have questioned various witnesses, including Mr. Togneri. We have also invited other witnesses to appear, such as Mr. Dimitri Soudas. However, you know that Mr. Soudas was a no-show. Actually, he did accept our initial invitation, but unfortunately, the fire alarm went off. The circumstances were rather unfortunate, don't you think so? After that, we had to subpoena him.
The three of them were subpoenaed, and each time, you said that ministerial responsibility was involved and that the ministers had to appear. Last Tuesday, Mr. Walsh informed us that ministerial responsibility extended to your officials, but not to your political staffers. So then, the first thing we had was the Law Clerk and Parliamentary Counsel of the House issuing a legal opinion.
Then, regarding the Afghan detainee issue, on May 25—I'm not sure about the date—the Speaker of the House of Commons, Peter Milliken, also contended that you should, as a member of the government, submit to the will of Parliament—be it Parliament or a committee—and that Parliament had precedence over the executive power.
So, we have two opinions—Peter Milliken did not issue an opinion, he made a ruling, and Mr. Walsh issued a legal opinion.
Yesterday was the last possible day for Mr. Dimitri Soudas and the two others who were subpoenaed to testify to appear. You are, as , the embodiment of law and order, so please explain to us why you think that it is okay for Dimitri Soudas, an employee of the Prime Minister, to not appear. Since you are , sanctioning Dimitri Soudas' actions is tantamount to violating the laws and rules. That is what Mr. Peter Milliken told the House and what your law clerk told us in committee on Tuesday. Can you explain to us why the is not complying with the law?
:
Well, it's just precisely because you used the term “breaking the law”. and then you quoted the Speaker's ruling, Madame Freeman, and so we'll have a look at the transcripts but you made this accusation about the law not being followed and you mentioned specifically.... So I began to say, with respect to Speaker Milliken's ruling, that in fact there have been negotiations in good faith that have recently been concluded, to which your party was one of the parties.
If you are also referring to ministerial responsibility, yes, ministers are accountable and answerable to Parliament, and the government House leader, Mr. Hill, has made that very clear. Again, ministerial responsibility is part of the parliamentary system that we have inherited and adapted in this country. On both counts, yes, there is ministerial responsibility.
And now that I have the opportunity, you mentioned the ruling of the Speaker, and again, I believe some people disagree with the conclusions we have come to with respect to the Speaker's ruling, which is their privilege, but we have entered into a document that we have tabled with Parliament, and I think it works very well. We're all part of the solutions, Madame Freeman, and we'll go forward from there.
:
Thank you very much, Mr. Chair.
Welcome to our committee meeting today, Minister Nicholson.
Last week I noted in my remarks that in the time I have been a member of this committee, I have seen the potential for us to do some very meaningful work when it comes to access to information, privacy, and ethics. Last year, we embarked on following up on the recommendations made by two commissioners for those acts, and we had most recently talked about proactive disclosure and even open government.
You did quote Commissioner Marleau's acknowledgment that the Access to Information Act is “sound in terms of its concept and balance”. I think we as Canadians can all agree that we can be proud of our access to information laws and proud of the fact that our government and this committee continue to look at ways to improve them.
I consider the work of this committee, as I said earlier, to be of the utmost importance in looking at ways to reform the Access to Information Act. I would also like to point to an observation that is made in the government's follow-up response to our report on the ATIA.
In this response, Minister, you stated that “the ultimate test of any access to information legislation is not solely how it appears on paper but also how it operates in reality, that is, whether requesters can actually get access to government records in a timely manner”. I'm wondering if you would be willing to comment on this statement for us today.
:
It's an overall report, and just in answer to Mr. Siksay about proactive disclosure, I think this is very important. Again, you can check the record of the Department of Justice over the last few years. I think it will confirm what I'm saying, which is that we make every effort to get information out to the public, because people who have an interest in this, people who want to know, people who have a right to know certain types of information, ought to be able to access that.
So you try to make it a little bit easier for people to do that and that's why I say that I was very pleased by and supportive of the changes under the Federal Accountability Act. Just one of the changes was increasing the number of investigators from four to eight that the Information Commissioner may use for investigations concerning sensitive material related to the defence of Canada or national security.
Again, it's giving more resources to the commissioner, and it's expanding the number of areas, getting it to all crown corporations, their subsidiaries, agents and officers of Parliament, and foundations. These are steps in the right direction in terms of getting people the opportunity to find out what's going on and to find out where and how their taxpayer dollars are being spent--and indeed, other issues that are important to people.
So yes, it's in the public interest, and you and I have been part of a political movement that has always agreed with that. And certainly I agree, and each minister within his or her department, should make every effort.... I can tell you that the Department of Justice has received an A in the last two years, and there's one prediction I made: I said that nobody will ever ask me about that.
Voices: Oh, oh!
Hon. Rob Nicholson: I said that it's the one thing I would never be asked about. But that said, it's not just a question of the mark you can get. You might get a D in the sense that you may be overwhelmed with requests or they may be very complex, so it's very difficult. But again, we all have that responsibility and we do our very best.
Welcome, Minister. Congratulations to your department on the mark of A. It gives you a double A. Randy and I both have been in the beef business: a Triple A is what you really need to get there. Triple A is very good beef.
Some hon. members: Oh, oh!
Hon. Wayne Easter: But, Mr. Minister, the government as a whole is an entirely different story.
I want to go back to the beginning, because when you started off, you talked at some length about the important work of this committee. You even mentioned the Federal Accountability Act. However, what we've seen in practice, I think, is a Prime Minister and a government that basically, regardless of what the Federal Accountability Act says, have subverted the ability of parliamentarians like ourselves, both in the House and at committee, to do our jobs.
You're aware of the issue of the three witnesses: Mr. Togneri, who is still under summons; Ms. Jillian Andrews, whom the bailiff couldn't find to issue a summons; and Mr. Soudas, who appears in TV pretty nearly every second or third night, to whom the bailiff couldn't issue a summons either. They're not appearing before committee.
I want to just put on the record, Mr. Chair, some of the scenario behind this. The clerk got a letter on June 1 from the Prime Minister, in which he said, “The purpose of this letter is to inform the Committee of my instruction to Mr. Soudas that he will not appear before the Committee”. He said in the letter:
Next week I will be present in Question Period on Tuesday, Wednesday and Thursday. Questions about these matters can be directed to me there.
Ms. Foote asked a question to the Prime Minister in question period. He didn't answer, so he didn't keep his word in that regard--that he would answer questions.
So the Prime Minister is not answering questions on Mr. Soudas from members of this committee, and Mr. Soudas is not appearing before the committee. Then we had the law clerk before the committee, Mr. Rob Walsh, and this is what he had to say--
:
Well, again, you've heard my testimony here today about all the different efforts through the Accountability Act in making all of these different crown corporations, commissions, and individuals be within the Access to Information Act.
With respect to the doctrine of ministerial responsibility, Mr. Easter, you may or may not be a student of the British parliamentary system, but ministerial responsibility is embedded in our system: ministers are accountable and answerable to Parliament and, by extension, to the public.
Again, if you aren't satisfied with the answers I'm giving you—or indeed any minister—you're free to make the argument that you don't like that, but that is part of our system, ministerial accountability. I know that my other cabinet colleagues have made every effort to appear before committees.
Again, I'm here myself, and I'm pleased to have officials from the Department of Justice here on perhaps technical questions that you may have with respect to reforming the Access to Information Act or the Privacy Act. I'm pleased to provide that technical assistance, but the buck stops with the ministers. That is part of our parliamentary system and it has been for at least a couple of centuries.
:
Thank you, Mr. Minister.
I appreciate you coming here today and making some comments about the rich British traditions. The Liberals actually do have one. It's called the House of Lancaster; it's not really the House of Commons. That's I guess where they carry out a lot of their ministerial level affairs--
Voices: Oh, oh!
Mr. Greg Rickford: It is funny.
In any event, Minister, I think our work so far on access to information and on the act is solid. I know that the Federal Accountability Act sought to make further improvements to access to information. It seems to me that there are some residual issues with respect to access to information that are not included substantively by the FAA, I'll call it.
If I understand it correctly, it's because these issues have some degree of complexity. They require further analysis. You mentioned earlier the importance of discussion and consultation with stakeholders before anything is really implemented. I believe these issues were laid out in the discussion paper by your predecessor, in April 2006. We've heard some reference to that today.
Since then, you've asked this committee to delve into these issues and present their findings to the government. I wonder if you'd take a few minutes to tell us why you think it would be valuable for the committee to study the issues raised in that paper.
Thank you, Minister.
:
Unfortunately, this is going to take a little bit more time than you had offered. Accordingly, I guess we have to move forward with that.
Perhaps I could leave you with just one point, though, if I may, Mr. Siksay, on the idea of consulting widely, etc. I just want everybody to know that in the privacy report, in 12 recommendations, we had 33 witnesses, 4 submissions, and 18 meetings. That, I believe, would constitute a comprehensive consultation. On the access report, we had 22 witnesses, 5 submissions, and 14 meetings.
So I want to assure you, sir, that when we send you a report with recommendations, we've done the best that we can.
:
We'll move to the item referred to in the motion by Mr. Siksay.
Mr. Kratchanov, you are excused, sir. Thank you very kindly. Please extend that to the minister.
I wanted to advise the committee that the reason I was a little tardy getting here—I'm usually here about 10 or 15 minutes before—is that I did run into Mr. Soudas outside the chamber this morning on the way here, and we had a little conversation. I offered him the summons, and he thought I shouldn't be giving that to him, so... It was only a photocopy, though.
In any event, he is well aware and following this. I think I had indicated that his position was that the matter was a matter for disposition by the House. That's a point for debate, I'm sure, either here and/or in the House.
The matter that Mr. Siksay has suggested that we move to has to do with order number 3, the second item. We're skipping over the instructions to the chair concerning information requests. It is the whole question of the discussion of the non-appearance of Mr. Togneri, Ms. Andrews, and Mr. Soudas.
I think when we had Mr. Walsh here we did receive a fair bit of information that is consequential or may have some impact on our decision as to how we proceed now that we have passed the date of Madame Freeman's motion and Mr. Soudas did not appear by the sixteenth. So I think we have all the information that we're going to get, other than the responses to the requests for information from Public Works that were under the Valeriote motion.
I understand that those are still not translated from Public Works.
A voice: No.
The Chair: Okay. So there's nothing I can circulate to the committee for their information at this point and we are still having some difficulty with the PMO and with Mr. Paradis' office.
This morning Mr. Giorno has written to the committee and indicated to the clerk that he shouldn't be writing to the person he wrote to in order to get the information. I think that—
You may recall that when I first raised it with the committee, I said that here is a template, here is what other committees have done, and it was just on Mr. Togneri. It listed the dates of service, etc. To this document, which was dealing just with Mr. Togneri... And this is in fact a motion that Mr. Siksay moved initially. That was tabled, but now he's bringing that matter basically back on the floor with the addition of this part, which goes into the middle, before “therefore we've decided to do this...”.
I do know that members have the original draft of a possible motion that was circulated when Mr. Siksay moved it. He has just circulated the additional language that he would like to have in it. If the committee would like to have the whole thing read right through again, for greater certainty, we could certainly do that. How's that?
Mr. Siksay, I'm going to leave it up to you to make absolutely sure.
But you have the documents.