Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 5 - Evidence
OTTAWA, Monday, May 7, 2007
The Special Senate Committee on the Anti-terrorism Act, to which was referred Bill C-12, to provide for emergency management and to amend and repeal certain acts, met this day at 1 p.m. to give consideration to the bill.
Senator David P. Smith (Chairman) in the chair.
[English]
The Chairman: For those colleagues here now, I thought I would provide an indication of timing. At the end of the meeting, we may discuss this a bit more. Today, the Federation of Canadian Municipalities will lead off, followed by representatives from the Office of the Information Commissioner of Canada.
Next week, I must speak at a conference in Vancouver and our clerk is away. Two papers are being completed — Senator Joyal I believe requested these — one comparing Bill C-12 to the existing act, the other comparing our situation to the U.K. and the U.S. They may or may not be ready for next week. Because the following week is the Victoria Day holiday, our next meeting will take place on May 28. I am hoping that everybody can block off three hours. With any luck, we may even get to clause-by-clause consideration.
The Privacy Commissioner of Canada is preparing a paper that will be ready soon. We will circulate that paper within a couple of days. If members there are issues in there that honourable senators feel warrant the commissioner being called, then we can do that, however, none of the changes relates to the Privacy Act, correct?
Adam Thompson, Clerk of the Committee: That is my understanding.
The Chairman: None of the changes relates to the Privacy Act, so it may not be necessary to call her. Members of the committee will, however, receive a copy of this paper; after having looked at it, if you feel it is necessary to call her, we can do so.
At the next meeting, there will be representative from the PCO and the council of emergency preparedness, which is the body that represents the provinces. With any luck, we could get into clause-by-clause consideration at the end of that meeting; if we do not finish, we will meet next on June 4. We should be able to report back well before the Senate rises for the summer break.
Our first witnesses are from the Federation of Canadian Municipalities. Councillor Randy Goulden, from Yorkton, Saskatchewan, who is the chair of the Standing Committee on Community Safety and Crime Prevention, will be making the presentation. Also with us from the FCM are Mr. Christian Laverdure and Mr. Joshua Bates.
Randy Goulden, Councillor, Yorkton, SK, Chair of the Standing Committee on Community Safety and Crime Prevention, Federation of Canadian Municipalities: Our deep appreciation and thanks to the committee for inviting us to appear here today.
We appreciate this opportunity to speak to you about Bill C-12 as it relates to emergency planning and how we allocate responsibilities and resources into that planning.
As we understand the bill, one of its primary objectives is to ensure that the federal response to an emergency is coordinated and harmonized with other jurisdictions. Clearly, this cannot take place unless cities, communities and municipalities are consulted. Municipalities are on the front lines of emergencies and are the first responders in 95 per cent of all emergencies here in Canada. Cities and communities are generally responsible for police, firefighters, paramedics, emergency shelter workers and other first responders. They are also increasingly exposed to the threat of terrorism and public health emergencies, such as SARS, influenzas and other pandemics, and to severe weather events. This is especially true for larger cities, as well as those with ports and airports. Cities are also expected to carry most of the burden for security at major national and international conferences and events, with costs increasing dramatically since September 11.
The proportion of total municipal operating budgets now devoted to protection is between 15 and 20 per cent, a number that will surely continue to rise. In most cases, there is only transportation and environmental services that consume more municipal resources. If these trends continue, they too will be overtaken by the cost of protective services in the next few years.
Despite this, municipalities are not consulted when decisions are made regarding national emergency plans and strategies. In fact, the current lack of consultation and coordination, which leaves municipal first responders out of the disaster planning, is underfunded, wastes scarce resources and threatens the well being of Canadians. While we agree with the intent of the proposed legislation, we do not see how the bill, as currently written, will lead to better coordination unless it makes explicit reference to the role and importance of municipal first responders.
The only reference in Bill C-12 to local authorities is that the minister would work with them through the provinces. Given today's realities, this is not nearly enough. Failing to acknowledge the municipal role in developing emergency preparedness policies risks perpetuating the current system. It does nothing to change the status quo, which has traditionally seen municipal governments and their front-line agencies left out of the critical planning and under- resourced. The absence of true municipal integration into overall emergency management plans results in a patchwork of guidelines and resources, and expectations that differ province by province, territory by territory, community by community. As a result, the other orders of government are not getting the full picture and are not taking into consideration the front-line requirements of municipalities.
There exists, in effect, not only a lack of national standards when it comes to emergency preparedness, but even a lack of knowledge of what resources are available. The issue of emergency management and preparedness is too important to be overtaken by jurisdictional wrangling. We need only look at New Orleans and Hurricane Katrina to see what can occur when those closest to the emergency are the least consulted and prepared.
In the new security environment, clarification of responsibilities and integration of federal, provincial, territorial and municipal responders is becoming more and more pressing. Bill C-12 provides Parliament with just the opportunity to make a strong statement about the need to involve municipal government in emergency planning — not as an afterthought, but as an important and primary partner.
We propose amending this bill with a preamble whereby the Parliament of Canada would recognize the fundamental role of municipal governments in responding to local, national and international emergencies; and that a coordinated and efficient response to emergency requires collaboration among all orders of government. Although not binding in law, this preamble would serve as an affirmation by Parliament of the importance of collaboration and integration in emergency planning and response. Of course, FCM would welcome the opportunity to assist in the writing of this preamble.
Again, we recognize the potential jurisdictional issues our proposal may raise for some. However, we feel that a preamble would strike the appropriate balance between respecting jurisdiction and recognizing municipalities as the order of government in charge of first responders.
Following our presentation, we will deliver to the clerk a summary of our presentation and copies of our recent report on emergency planning. This document, which was prepared for FCM by the national security group, outlines in detail many of the issues we raised in our comments. We trust this report will help the committee appreciate the scope of the problem and, more important, the scope of the potential benefits of better integration and coordination.
The Chairman: When you mentioned the ``lack of national standards,'' if you look at the evidence that was received by the Commons committee, the Bloc representative on that committee objected to the municipalities even being at the table because they are the creatures of the provinces. Some of the dialogue that follows that is almost like a comedy.
A preamble, of course, is not enforceable. We cannot put our heads in the sand and suggest we can impose national standards on entities over which we do not have constitutional jurisdiction. I do not know what your response to that is, and I do not know if your associates wish to comment. I will leave that up to you.
Ms. Goulden: I shall respond first, and then I shall ask our policy analyst if he wishes to respond as well.
I come from a small community in Saskatchewan. We feel that we are as prepared as any other community in Saskatchewan. When we sit down and start our dialogues, we find that there are different levels of preparedness. That concerns us. We are the largest city in our area, and we know our responsibility would be enlarged if there were emergencies, either natural or threats that we might have. We are very concerned because we feel we are not ready to help our surrounding communities.
If there were standardizations, we could all work together. At FCM, we understand the jurisdictional concerns in our cities and communities and we respect those. However, we should like to be at the table for the discussions. We also understand that anything that comes back to our cities and communities would come through federal and provincial agreements. We are not asking to oversee or work through any of those. That would have to come through the agreements.
The Chairman: We agree you should be at the table, which is why we invited you.
Joshua Bates, Policy Analyst, Federation of Canadian Municipalities: First and foremost, our priority is the safety and security of all Canadians. If you look at the report we will circulate following our presentation, there is reference to planning and standards. We would hope and expect with respect to any standards that are implemented that we would be consulted along with the provinces and territories. That should hopefully appease the concerns raised before.
If there are going to be standards, we hope there are adequate resources for municipalities to meet those standards, rather than saying this is a standard you have to meet and then being left to cope with that on our own.
The Chairman: Mr. Laverdure, do you wish to comment?
Christian Laverdure, Deputy Director, Policy, Federation of Canadian Municipalities: No, thank you.
Senator Nolin: Thank you, madam, for appearing. I want to tell you that you have in front of you a body of the Senate that respects your jurisdiction greatly. I do not have to tell you that another committee of the Senate is, in an ongoing manner, looking after first responders and your role in tackling those challenges. We are deeply concerned about your comments. We are trying to find a practical ground to make that legislation effective.
I am sure you participated in 2005 — if not you personally, people from your organization — in the consultation organized by the Department of Public Safety and Emergency Preparedness. Have you voiced the concern you are voicing in front of us today?
Ms. Goulden: I will ask the gentlemen with me to respond, because I was not the chair in 2005. I want to be certain we have the appropriate information for you.
Mr. Laverdure: I am not sure which consultation you refer to. We are in constant contact with Public Safety and Emergency Preparedness Canada.
We do voice our concerns. We are not trying to go over jurisdictional issues here. We are trying to have a clear, open chain of communication as to what our concerns are as first responders in cities where people live. I am not sure exactly which consultation in 2005 you are referring to, but we are communicating our concerns on a continuous basis through the appropriate channels.
Senator Nolin: In 2005, the department organized consultations to modernize Canada's emergency management legislation. That is what we were told, and I hope you were part of those discussions.
Mr. Laverdure: To my recollection, and somebody may correct me if I am wrong, I do not recall being consulted on that. When we are aware of certain consultations, we do make our presence known and our willingness to participate. It might have happened through those channels.
Senator Nolin: Do you agree, Ms. Goulden, that municipalities are included in the expression ``local authorities'' in the bill?
Ms. Goulden: I believe in Bill C-12 we are referred to three times, but only as almost other entities, where we feel we should have more presence in the preamble, or more recognition, because we are the first responders.
Senator Nolin: We all agree with you. As the chair mentioned, recognition in the preamble is really a show of respect, but not more than that. A preamble is not part of the mechanics of a bill.
I would ask you to look at clause 6(2)(b), which is on page 4 of the bill. That clause reads — and I quote:
Each minister shall include in an emergency management plan . . .
(b) any federal-provincial regional plans;
I personally presume that you are part of that. Do you feel that you are a part of that?
Ms. Goulden: That would be a presumption. In my opinion, it would be wonderful if there were some reference to cities and communities. In appearing here, we thought that inclusion in the preamble would be the balance. Are you suggesting that we would have some mention in that?
Senator Nolin: I am suggesting that each minister has important responsibilities, so important that I personally think there is a contradiction with the responsibilities of the minister responsible for the act — however, that is another concern. With respect to the discussion we are having now, each minister of the Crown will have to produce and maintain an operational emergency plan. That would include any federal-provincial regional plans. I presume that would include the local authorities.
Ms. Goulden: Presume.
Senator Joyal: Welcome, witnesses. In my reading of the bill, ``local authority'' is not defined per se, especially when it is referred to in the interpretation portion of the bill, clause 2. I would ask you to look at the last paragraph of clause 2, which is the definition of ``provincial emergency'' — the last term to be defined. That paragraph reads — and I quote:
``provincial emergency'' means an emergency occurring in a province if the province or a local authority in the province has the primary responsibility for dealing with the emergency.
In other words, you are referred to indirectly, meaning that if you are the first one to respond to a situation, you are seen as being able to trigger a national emergency. That is the way I interpret this action. In other words, even though the terms ``municipality'' or ``city'' or ``town'' are not used, the general acceptance of ``local authority'' — perhaps we can obtain a definition of ``local authority'' in a law dictionary. Nevertheless, it seems clear to me that if you are to respond to a situation it is because you have a responsibility. That responsibility cannot be self-attributed. Somebody has to give it to you. An NGO cannot define itself as having the primary responsibility for dealing with an emergency. We cannot envisage that this is the proper interpretation to provide to local authorities.
Therefore, you are referred to indirectly in the interpretation section, because you will encounter situations, as you have said properly, in which you will be the first one to respond. As I think you said in your statement, you are the first ones to be called in 90 per cent of cases.
However, I would ask you to look at page 5, clause 6(3) — which reads:
A government institution may not respond to a provincial emergency unless the government of the province requests assistance or there is an agreement with the province that requires or permits the assistance.
My interpretation of this clause is such that the city of Saskatoon cannot call the federal Minister of Public Safety to say, ``We are overwhelmed with a situation; come help us.'' There are two cases in which that can happen: First, if there is an agreement with the federal government; second, if the federal government makes a decision that a situation is of national concern.
Therefore, you have no direct capacity to trigger the declaration by the federal government that an event is a national emergency situation. You are denied that opportunity.
However, being on the front line, in a way you can be assimilated to a provincial emergency situation. In other words, you have an indirect capacity to trigger a declaration from a national emergency situation. Am I right or wrong in the way I read the bill?
Ms. Goulden: Yes. In our interpretation, that is how we understand it. That is the process within which we work.
We are asking for more direct consultation when we begin the management plans and the policy direction. We have concerns about that. We understand the jurisdictional responsibilities, but when we start the managerial plans, we would very much like to have more direct consultation. That is the area where we will be of the greatest benefit because we are the first responders.
Senator Joyal: Let us go to your last statement, that you want to be consulted for the coordination. To rephrase your terms, you want to be at the table for the coordination. Clause 4(1)(f) of the bill, at page 2, states:
(f) . . . relating to emergency management with those of the provinces — and supporting the emergency management activities of the provinces — and through the provinces, those of local authorities;
It is quite clear that you cannot go directly to the federal government to try to coordinate your plan. Suppose you have a plan for the various situations where you might consider a need to respond, you cannot go directly to the federal Minister of Public Safety and tell him that you have a plan and ask him whether he agrees with it or has any comments about it. You cannot do that; rather, you have to take your response plan to your province. That is another step that you must take.
If I understand the bill correctly, again from my previous comment to you, you cannot call upon the federal government to intervene directly. According to clause 6(3) and according to clause 4(1)(f), you cannot coordinate your plan directly with the federal government.
Therefore, my question to you is this: Are you asking us to change that situation at one or another level, or are you asking from us to be more involved in the overall planning at your level? I do not want to embarrass you with my question, but this is fundamentally where we are with the municipalities — what you are asking us to do.
I have no problem in principle to a preamble, but the usual practice is to interpret the preamble in the legislation, where it is given effect. Therefore, if it is to be given effect in the bill, it should be because it addresses those two specific elements in the bill where you are directly mentioned. I do not want to be too legalistic with you, so perhaps Mr. Laverdure or Mr. Bates can assist you in this. That seems to be the key issue to determine today.
Mr. Laverdure: You are completely right in saying that a preamble, as Ms. Goulden said, has no weight. We want a recognition. When it comes down to the coordination and implementation of the management plans of the emergency policies and so on, we are completely aware and completely in favour of the standard process of going through the provinces and territories as is mandated. We are not here for jurisdictional squabbles, and we recognize that. Rather, we want recognition at the beginning, when government is starting to develop policies and emergency planning. There is nothing in the Constitution or anywhere else that says you cannot talk to us and ask us about out concerns: Where is it that things fall apart? Where should things be more coordinated? When it comes down to the actual coordination and implementation of those strategies, et cetera, it must be coordinated through the provinces and territories, and we agree with that.
A preamble would not necessarily put it into law or enact it. We would love to be mentioned all over the place and be recognized as a first-class partner, if you want; however, we are aware that that might not be possible and that it might prevent the bill from becoming legislation.
We are of the opinion that a preamble would accomplish our objective of seeing and acknowledging the critical role that municipalities play in security management without raising jurisdictional opposition.
Senator Joyal: I will move on to my next question. It seems that the bill reflects the state of the law in Canada as much as the Supreme Court has ruled on the status of municipalities in Canada. There have been, as you know, many decisions of the Supreme Court in relation to that. The last one was in respect of the restructuring of municipalities in Quebec. You will recall that a group of municipalities challenged their new status under restructuring and the Supreme Court quite clearly restated the constitutional principle in its decision in that case. Until we change the Constitution, this is the law of the land.
It is my understanding that the bill reflects the condition of status of the law in respect of municipalities with the way in which the Supreme Court interpreted it. I agree with you that it does not mean that we could not have a reference in a preamble to local authorities. However, unless we change something substantial in the bill relevant to the clause that I read to you, it does not seem that it would impact much beyond your current responsibility in the federal legislation where you are referred to in the definition as a provincial emergency or as referenced in clause 4 or clause 6 of the bill.
Ms. Goulden: Once again, we understand the jurisdictional issues. We, too, have been working with all of those jurisdictions in what we do in cities and communities in responding to emergencies. e are asking only that we are consulted and communicated with when the work does begin, because once it gets to the implementation stage, it is difficult for municipalities — cities and communities where people live — to implement some of the policies under which we have to work. We do not have the human and physical resources to do those things. When an emergency happens, lives are at stake and we need to respond very quickly. The resources, the standards and the guidelines have to be there for us.
Senator Joyal: Let me take it at another step. You deplore the lack of national standards. Does your federation have a task force or a working group that is mandated or referenced to prepare a study of the various guidelines or rules that might be followed by municipalities across Canada? As you said most properly, that is where most of the emergency situations arise. Do you have a task force or working group to review those guidelines and come forward with recommendations? Being a federation, you have the capacity to bring your members together to develop a kind of standard code of emergency response, to assist your members and provide them with the tools to adjust their capacity in a better way.
Ms. Goulden: Certainly, we could do that.
Senator Joyal: Currently, you do not have one.
Ms. Goulden: The Standing Committee on Community Safety and Crime Prevention is mandated to do that. We could certainly do that. We would very much like to work with your committee, with the government and with the departments that have that mandate to bring that about. We would be more than happy to do that.
We have representation on that standing committee from many communities across Canada — large, small, northern and remote — that are used to dealing with emergencies and which, each in their own way, have their limited resources and ways of dealing with it, and they respond in the best capacity that they have.
Senator Joyal: You have a working group, but that working group does not have the specific mandate to come back to your general assembly meeting, say, X-number of months down the road, with a report to ensure that that is part of your annual deliberation and that you act upon it?
Ms. Goulden: At this time, we do not have that mandate, but working with any of the departments, that is something that we would very much like to take on.
Senator Joyal: That seems to me to be parallel to a situation I have known as Secretary of State, when I was responsible for the post-secondary education program in Canada many years ago. The federal government cannot legislate national standards in education, for obvious reasons; education is the realm of the provinces. However, the provinces among themselves can act on this, if the provincial Ministers of Education decide to put their minds to it and come forward with a capacity to define the standards to ensure that the system remains at par level. It is a possibility for you to act on your own without having the federal government necessarily triggering that kind of initiative. The federal government may be invited, if the provinces so wish, as an observer. It is a fertile avenue to look into.
You have mentioned the problems of resources and ``expertise.'' On the basis of your experience, what are the major problems that the municipalities have incurred in the past in relation to responding to emergency situations?
Ms. Goulden: Having the appropriate resources available to us on an immediate demand is one of our concerns. The other concern we have is communication. We need to be able to communicate immediately to the different levels that we have to work with. We must also understand what the other communities have. We need to know who to go to if there is a need, for instance, for additional ambulances. We need to know where we can go immediately.
There are many other things that come into play when dealing with pandemics. Where do we go if quarantine is needed? Who makes up the protocol? Who gets inoculations?
For instance, in my area in Saskatchewan, we feel that we are under-policed in terms of our community policing needs. If there were an emergency, it would put an additional strain on the police we have in our communities.
Senator Joyal: You have mentioned an important matter, and something we have experienced recently, that is, the international meetings that are taking place in various cities around Canada, in Halifax, Quebec City, and I hope in Saskatoon sometime.
Ms. Goulden: Yes.
Senator Joyal: When such a situation happens, normally the federal government will be in touch with the provincial government, because it involves provincial services. The two sign an agreement regarding the conditions under which the national meeting will take place, as well as the contingencies of additional police forces and costs.
Do you have experience with that kind of agreement that seems to be working well or not working well? Which aspect of those agreements, in your opinion, are lacking?
Mr. Bates: Once again, we will provide you with a list of recommendations following our presentation. Our experience in the past has been that municipalities often are not compensated for the additional security costs for major international events. One of our recommendations is that that arrangement be improved.
One example is when President Bush came to Canada in 2004. He had two stops. The first was in Ottawa. The policing costs associated with that visit to Ottawa were paid for by the federal government. Following that visit, he went to Halifax. In that case, the Halifax Regional Municipality had to pick up the additional policing costs. That is one example of a major national event where municipalities had to pay for the extra security. We would like to see that situation improved.
Ms. Goulden: Another example is the recent G8 talks in Kananaskis, Alberta. In our community, we have 23 RCMP that we contract with. Six RCMP left our city to go to security, and we completely understand that; we have no objections over that. However, at the time that was happening, in June, there were four transfers out of our city and no transfers in. We were down 10 officers, almost half of our allotment of RCMP.
That is one example of how we need to continue discussions and communications, because if something were to have happened in our community — and we live on a major highway corridor also — we could have been in dire straits.
I know from my colleagues across Canada that there are concerns over the Olympics and what might happen to our security forces and our policing. We totally understand. This is an incredible event for our country, and we want to participate, but we still have to be able to accommodate all the needs that we have in our cities and communities.
Senator Fraser: Welcome. I wish to come back to clause 6 — and I thank Senator Nolin for drawing it to our attention. I shall put the question to you, but there may also be useful input from our francophone colleagues, who also have the benefit of being lawyers, unlike me.
Section 6(2) reads as follows:
[English]
Each minister shall include in an emergency management plan
(a) any programs, arrangements or other measures to assist provincial governments and, through the provincial governments, local authorities;
(b) any federal-provincial regional plans;
(c) any programs, arrangements or other measures to provide for the continuity of the operations of the government institution . . .
The use of the word ``any'' there seems to me to suggest that it is not necessarily obligatory for such plans, programs, arrangements or other measures to exist, but if they do exist, they must be included in the minister's overall emergency management plan.
Then we turn to the French, which is often clearer than the English. There it says:
[Translation]
Tout plan de gestion des urgences prévoit les éléments suivants: les programmes, dispositions et autres mesures; les plans régionaux, les programmes, dispositions et autres mesures.
[English]
That, to my lay Anglo ear, sounds as if they have to exist. They will exist and they will, once in existence, be included in the overall emergency plan.
Am I right so far? Do I make sense so far?
Senator Nolin: Yes.
Senator Fraser: I make sense so far. Could we then assume, if we are hanging our hat on the French version — which is clearer, in my view, than the English version — that there must be programs to assist through the provincial governments, local authorities and municipality authorities? Am I drawing too long a bow there? Do you find any comfort at all in the scenario I am outlining here?
Ms. Goulden: Unfortunately, one of the big disappointments in my life is that I have not been able to communicate in the French language. I agree with you that ``must'' and ``will'' are much stronger terminology than ``any.''
Senator Fraser: I am seeking guidance and clarification here as much as anything else.
The Chairman: It sounds as though there is a drafting difference.
Senator Nolin: In English it is ``shall'' and in French it is ``prévoit.''
Senator Fraser: In English, the clause reads, ``shall include . . . any'' which is much looser.
[Translation]
Senator Nolin: I think it is fairly clear.
[English]
We are all going in the same direction. You want us to create a preamble. What we are trying to get from you is this: Is there something that satisfies your requirement?
Senator Fraser: Is there something in here that can be the kind of real imperative assistance that you probably have a right to say we need? The constitutional niceties of it, of course, bedevil us. This committee cannot rewrite the Constitution of Canada. That might be fun, but we cannot do it.
In the bill, as written, I am trying to figure out to what extent municipalities must or may — or, in a nice world, it would be okay to — be included. It struck me that reading the French section of the bill — maybe it was more imperative than the English, but if I am out to lunch, so be it.
The Chairman: You may want to give that very considered thought and send us back a letter with a precise reaction to it, because this is a serious question about a serious issue. If we make an amendment that implies something, there are some members of the House of Commons that can go off like rockets — you can figure out who they are.
Ms. Goulden: Thank you very much for addressing this. We are looking for clarity so that we understand what our roles and responsibilities are. We would very much like to take that back and perhaps work with your clerk and come back with a letter that would be very explicit about what we would like to see or what would work the best for us.
The Chairman: I am giving you the invitation to provide us with a considered response.
Senator Fairbairn: Thank you for being here. I come from southwestern Alberta, near the mountains and the rivers. I would encourage you to push as hard as you can to get exactly what the senator has been speaking about.
It is all very well to have words on a page, but when something happens, unless it is very clear where the lines of response are, the page does not work necessarily. I say this as a result of an incident several years ago when an ice pack on one of the Rocky Mountains cracked. It was holding up water, and the water came all the way down the southern part of our province, to the Old Man River. It was a devastating kind of thing. I was involved in government then. At the moment it was happening, it was very difficult to make the connections on that particular weekend, if memory serves me properly, to get through the province to the federal government so that people on the ground could get the support they needed. The military people had to put on civilian clothing to help at the river banks, because they were not officially allowed until this was made possible.
In that sense, the more you can be up front there and associated as the people on the ground to be able to have the opportunity by law to get on with it, it is very important. There may be a debate over words — and there probably will be with your preamble, or whatever — but it is worth a try.
The Chairman: You do not need to reply to that. It was a ``we are with you'' statement.
Senator Nolin: I know would you like to see ``municipal government'' included in clause 3, but when we read the words ``other entities'' in that clause, we all understand the specificity of any constitutional argument. I think you are included in those ``entities.'' The minister must cooperate with you; that is my first comment.
Second, I am much more concerned with the planning and prevention than the emergency themselves. I am concerned about that, but we do not want those situations to happen, so we had better plan for them. Being in your seat, I, too, would want to be at the planning table. I wish to bring your attention to the way the federal component of emergency planning or those plans are to be prepared. There is a minister promoting and there is a list of responsibilities the minister will have under proposed section 4.
If you look at paragraph (a), which is probably one of the important ones, it states:
4.(1) The Minister's responsibilities under section 3 include
(a) establishing policies, programs . . .
Ministers of the Crown responsible for federal entities will have to write those plans, and then you come in.
On the other hand, proposed section 6(2), in my reading of it, states that they must consult you. It is not a maybe, it is not a possibility, it is a must. Any minister will have to write plans and you are part of that. That is my reading of 6(2).
We will read your submission and I hope we find you asking for more than a preamble. As the chair said, if we send that back to the House of Commons with an amended preamble — we all know the meaning of a preamble and the extent and capacity of a preamble — we will trigger an argument for the sake of triggering an argument, but we will not achieve what you want, that is, being at the table at the planning stage. That is my reading of your concern.
I am ready to read your letter.
The Chairman: Senator Nolin's point is very valid. When your staff is reviewing the response — you might want to read the comments made by Serge Ménard, who is with the Bloc, to the Commons committee, on the last day the committee held hearings on this matter, I think. You will get the point very quickly. He did not even want municipalities at the table.
That is not our view, but you will understand the nuances there.
Ms. Goulden: Thank you for that. I have read through those comments.
Indeed, it does state in the bill that ministers will work, and that is what they have to do — as long as they understand what our needs are before they even get to that point.
Senator Joyal: When you are considering answering the request of the chair, you might want to pay attention to section 92.8 of the Constitution, which refers to the jurisdiction of the province, to municipal institutions in the province. Paragraph 8 of section 92 covers municipal institutions in the province. On the French side of it, it says essentially — I am sure you have read it before — I shall quote 92.8:
[Translation]
Les institutions municipales dans la province.
[English]
If you use the words ``local authorities,'' it is even broader, in my opinion, than ``municipal institutions.'' The term ``local authorities'' includes municipal institutions. Several bodies have been created by the provinces to regulate the activities of municipalities. They have given and vested some responsibility. In terms of answering emergencies, they have an authority of some sort. I do not want to enter into details, but one would have to look at the national level to identify those responsibilities.
It would be worthwhile to look into that definition and how in practical terms the court has viewed those authorities in helping us to understand what you expect and how to take it into account.
The Chairman: We will now hear from the Office of the Information Commissioner of Canada. We have Alan Leadbeater, the Deputy Information Commissioner of Canada, and Ms. Nadine Gendron, their legal counsel. It is my understanding that Mr. Marleau, who took office recently, thought it would be more appropriate for Mr. Leadbeater to attend here to address this issue.
Welcome. Mr. Leadbeater, the floor is yours.
Alan Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner of Canada: Thank you, Mr. Chairman and honourable members of the committee. We appreciate the opportunity to speak to you about this matter.
Just to set the context, I urge you to remember that we are not mandated in our office to support disclosure at all costs. Our obligation is to police both the secrecy and openness provisions in the statute and to encourage a balance so that what is needed for secrecy in the Government of Canada is provided and what is excessive is questioned.
Clause 8 creates a new exemption in the Access to Information Act and thus gives the government a new basis on which to justify secrecy. You have the task of considering whether that provision is justifiable. Our assessment, which I will explain, is that this new zone of secrecy is not justifiable.
My presentation will be in three parts. First, I shall review our understanding of the concerns to which this provision in clause 8 is addressed. Second, I shall review which existing provisions of the Access to Information Act already take account of those concerns. Finally, I will give our views as to why clause 8 is not only redundant but would weaken the accountability of government through secrecy.
First, what are the concerns? The concerns that prompted the government to include clause 8 can be elucidated through the minister's evidence. As well, we in our office had meetings with staff of the department before the bill was introduced. In those meetings, we gained an appreciation of the concerns. These are the concerns as we understand them. First, there needs to be protection of confidential information provided by third parties in the development of emergency plans, because this information would reveal vulnerabilities in the enterprises and undertakings of third parties and, if that information were disclosed, it could facilitate the commission of offences, sabotage or terrorist acts. The second concern is that disclosure of confidential information about the vulnerabilities of private enterprises and undertakings could be prejudicial to their business and competitive interests. The third concern is that, without a complete assurance that information provided by third parties will be protected from disclosure under the Access to Information Act, there will be reluctance to voluntarily cooperate with the provision of information to the government.
I have distributed to you a copy of the Access to Information Act. It would be useful for us to look at several of the existing provisions of the statute that are addressed to these very concerns. That will be the second part of my presentation.
First, I would ask you to turn to section 15 of the statute. Section 15 begins at page 51. It is an exemption provided to government institutions in the face of an access to information request.
The Chairman: Do all members have this in front of them?
Mr. Leadbeater: It gives authority to refuse to disclose information — and I quote:
. . . the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities . . .
I will stop there, because the statute provides a definition of ``subversive or hostile activities.'' You will find that at page 54. Subversive or hostile activities are defined there to mean — if you look at (c):
. . . activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states . . .
Therefore, any information the disclosure of which could be injurious to the effort to suppress subversive activities, including terrorist acts, in Canada would be caught by that exemption.
I should also like to refer you in a more specific sense to page 56, which is the exemption — 16(2)(c) — and I quote:
16(2) The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonably be expected to facilitate the commission of an offence . . .
Paragraph (c) states:
(c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.
I wish now to draw your attention to section 17 of the statute, which is at page 59. Section 17 states:
The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to threaten the safety of individuals.
We have covered safety, criminal acts and terrorist acts in the sections I have mentioned to you. I would now refer you to section 20 of the statute, which you will find at page 62. It is a mandatory exemption:
20(1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains
(a) trade secrets of a third party;
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.
Those are the commercial interests. The commercial, security, anti-terrorist and anti-crime interests are all taken care of in the statute.
I shall also refer you to section 22, at page 66, which authorizes the head of a government institution to — and I quote:
. . . refuse to disclose any record requested under this Act that contains information relating to testing or auditing procedures or techniques or details of specific tests to be given or audits to be conducted if the disclosure would prejudice the use or results of particular tests or audits.
Even trial runs and tests of security procedures and so forth in an institution have protection in the statute.
In summary, those provisions provide a full range of protection for the information of concern to third-party providers. Moreover, it is not only these sections themselves that provide protection, but it is also the process provided in the statute. It is the strongest statute in Canada — in the world — for the protection of third-party information because it not only has all of these protections I have mentioned to you, it also has a process.
The process is as follows: If a government institution proposes to release any third-party information, it must notify the third party, and the third party has then a right to go to the Federal Court. The Federal Court, first, is a determination by a single judge whether the information is sensitive and whether its release would cause harm. There is also a right of appeal, without leave, to the Federal Court of Appeal, where three more judges will hear the same matter. Then there is the possibility of an appeal to the Supreme Court of Canada with leave. Therefore, not only is the statute strongly worded to protect the information, but the procedure envisages up to 13 judges making a decision before the information would ever be released.
No other sensitive information held by the Government of Canada, including the Canadian Security and Intelligence Service information, RCMP information or private medical information of Canadians, has that protection.
A similar process is available even if the government institution proposes to keep the information secret but the information commissioner thinks it should be released or a requester thinks it should be released. The process must go through the Federal Court review before the information can be released, unless the third party was in agreement.
What is wrong, then, with introducing some redundancy? I have told you it is all protected, that there is a process there above and beyond any other sensitive information. Why not go a little step forward and provide a total blanket, so that third parties will be comfortable?
The reason clause 8 in Bill C-12 is bad public policy, in our view, is that it removes the burden on government institutions and third parties to demonstrate the sensitivity of the information before refusing access to it. The proposed section would allow third parties to define the scope of secrecy simply by stamping ``confidential'' on the information provided to government concerning their vulnerabilities.
To remind you of the differences — I would ask you to look at section 20(1)(c) of the Access to Information Act and compare that with Bill C-12, clause 8. At 20(1)(b) of the Access to Information Act, it reads, in part:
(b) financial, commercial, scientific or technical information that is confidential information —
You have to prove it is confidential, by its nature. I shall continue the quote:
— supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;
Third parties cannot simply say, ``I have it on my website, but, government, you cannot give it out.''
Compare that with clause 8 of Bill C-12. There is no requirement that the information be confidential in nature; it is simply that it be supplied in confidence. As well, the phrase ``and is treated consistently in a confidential manner by the third party'' does not appear. That raises a concern in our mind because of the removal of the requirement that the information be sensitive. That is essentially what is happening in clause 8. There is no longer a requirement that the information be sensitive.
This amendment sweeps up in the net of secrecy information that may not be confidential or sensitive. In this regard, the amendment does not require that the third party even keep it confidential.
This broad zone of secrecy as defined not by the demonstrable sensitivity of the information but by the mere assertion of confidentiality by the third party would be mandatory forever, no matter changing circumstances, no matter how much time has passed, no matter if the third party firm is in existence or not in existence. Of course, governments could choose to disclose the information in the public interest pursuant to section 20(6). You will see that is contained at page 64. There is an amendment making it applicable to this provision, that the information may be disclosed if disclosure — and I quote:
. . . would be in the public interest as it relates to public health, public safety or protection of the environment and, if the public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations . . .
In my 16 years as Deputy Information Commissioner, no government has ever disclosed any third-party information in the public interest that I am aware of.
Even that changes access from a right, to the grace and favour of the state. What is in the public interest would be up to the heads of government institutions to define from their point of view, and I think you saw during the minister's evidence that he did not have a particular idea of what would be disclosed in the public interest.
Of particular concern to us is that the level of secrecy proposed could insulate governments from accountability for failures to properly assess and act upon information on vulnerabilities they receive. Suppose, for example, there were to be an incident of terrorism or natural disaster to which the government does not properly respond? MPs, senators, members of the media and public could not find out the extent to which the government had been properly forewarned, unless the government were prepared to disclose the information in the public interest.
I ask you to bear in mind the guidance given by the Supreme Court of Canada as to the purpose of this statute, the Access to Information Act. I am quoting from Mr. Justice La Forest, and I have cited the case in my material. He said the following:
The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.
There is an accountability issue that, I think, clause 8 undermines. How are the people of Canada to discover whether the government acts professionally, promptly and fully in discharge of the mandate the statute gives them? There is a real danger that clause 8 of Bill C-12 would have the effect of insulating the government and future governments from accountability for how the emergency management act is administered.
I also ask you to bear in mind section 2, the purpose clause of the Access to Information Act. You can find section 2 at page 37 of the document I have provided to you. It reads as follows:
The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific . . .
Clause 8 fails the test of being limited and specific. Anything can be kept secret that a third party asks to be kept secret. No tests, no sensitivities, need to be shown.
Surely clause 8 begs the question: Why does information about the vulnerabilities of third-party enterprises and facilities require a greater degree of protection than the Access to Information Act already gives to the facilities and systems of our military, our security and intelligence agencies, our penal institutions, our Coast Guard, our diplomatic services and diplomatic means of communications, our national police force — indeed all of the facilities and systems of the institutions comprising the Government of Canada?
I also draw the attention of senators to the fact that, for almost 25 years — the act came into force on July 1, 1983 — third parties have been providing their most sensitive information to federal government regulators — airlines, rail lines, shipping lines, oil and gas pipelines, telecommunications undertakings, pharmaceutical companies, banks, et cetera.
The existing exemptions in the Access to Information Act have worked very well to protect what needs protection. I have read the transcripts and I have not found one third party showing one type of information that could not be protected under the statute, and no government official has shown us one type of information that could not be protected under the statute.
It is a core principle of our Canadian democracy that government secrecy must be kept to the objectively demonstrable minimum so as to maximize the accountability of government through transparency. That principle has been recognized by the Supreme Court as quasi-constitutional. We believe clause 8 in Bill C-12, in the name of security and emergency preparedness, would unnecessarily undermine this principle.
Thank you for allowing me to make the opening statement. I shall do my best to respond to your questions.
The Chairman: Mr. Leadbeater, you make a very compelling case. I do not believe this was heard by the Commons committee. Were you were not invited? Were you not up to speed? How is it that this is the first time we have been aware of this?
Mr. Leadbeater: As I said, we had discussions at the officials level and then a couple of things intervened. First, we were not invited. Second, there was a period of months during which there was no Information Commissioner, John Reid's terms having come to an end in September and Mr. Marleau's term not commencing until January. There was no acting commissioner appointed by the government, so we did not have instruction to appear at that time, but we tried to make our concerns known through the official level.
The Chairman: I am glad we invited you.
Senator Fraser: As most people are when they study this bill, I find myself increasingly confused.
It seems to me that what is being added in is the ability of the government to refuse to disclose third-party information about emergency management plans in particular concerning the vulnerability of that party's building structures, networks or systems, including computer communications, and the methods used to protect those buildings, systems, et cetera.
Mr. Leadbeater: Section 16(2)(c) of the Access to Information Act speaks to — and I quote:
. . . the vulnerability of particular buildings or other structures or systems, including computer or communication systems, or methods employed to protect such buildings or other structures or systems.
Senator Fraser: Is there a difference between what there is already and this?
Second, the proposed provisions in C-12 would remain subject to the same appeal procedures by you as are other elements of the act, would they not?
Mr. Leadbeater: That is right. I will answer the last part of your question first.
If the clause 8 is enacted, there would still be a requirement for notice to third parties before there could be any disclosure, including disclosure in the public interest, and an opportunity for the third parties to seek review by the Federal Court.
To the first part of your question, what is the difference between what exists and what is being proposed, all the existing provisions require a demonstration that the information is sensitive. Clause 8 does not require that; it merely requires the third party to have provided it in confidence.
Senator Fraser: To be the devil's advocate, it seems to me that there might well be, in the wonderful new world in which we have been living for the past few years, significant amounts of information that were not trade secrets or commercial secrets in the normal meaning of those terms, but that it would be in the public interest not to disclose. An example is security patterns and practices. What is wrong with building this in, in this explicit way?
Mr. Leadbeater: If your question is whether there is some damaging type of information that is not already covered by the statute and should we not cover it, I have not seen it. In theory, there could be. The statute is so comprehensive in protecting third-party sensitive information that I cannot think of a type of third-party sensitive information, whether it is company image protected, vis-à-vis their customers, security protected or competitive position protected. However, there is a burden. You must show that it has a certain sensitivity.
Going to a system where people can define the scope of secrecy for information in the hands of the federal government simply by fiat — we do not want it ever to be disclosed — we believe undermines the accountability role of the Access to Information Act as well as creating a zone of secrecy that does not meet the test of demonstrably objectively defensible in a democratic society.
Senator Fraser: Even though it would remain subject to the appeal procedures?
Mr. Leadbeater: The appeal procedures are to block release.
Senator Fraser: However, you can appeal a decision to keep something secret, can you not?
Mr. Leadbeater: Absolutely. However, if the provision is as written here, with no tests, the court case is pretty simple. Did the third party provide it in confidence? Is there a ``Confidential'' stamp on it? If so, it is game over.
Senator Fraser: It is becoming clearer. Thank you.
The Chairman: Mr. Leadbeater, to the extent that there are contradictions between the philosophy and the approach of the status quo and the proposed new legislation, in your opinion was this an intentional shift or was it a drafting oversight?
Mr. Leadbeater: I have a pretty good idea about what it was. The government has had a lot of discussion, in consultation with the private sector, and I think the private sector has said to them, ``Yes, we have read the Access to Information Act, and we see all these provisions, but before we give you anything more, it must be iron-clad. There must be no possibility of disclosure.''
Think of the bridge between Windsor and Detroit, which is owned by the private sector. Suppose there is one place there that is vulnerable, the place you can put the explosive. That owner will not give that to the Government of Canada. The government tried, and said, ``Look, it will be protected. There is no way that could be released. You have all this protection procedurally and in the statute.''
I think there was a failure of education of the third parties. On top of it, the clause itself does not even result in an iron-clad situation because of the public interest override. The minister himself cannot promise it to be iron-clad. It will never be released because there is an opportunity to disclose in the public interest, and nobody knows what that means.
Senator Fraser: I found the section I was looking for in the Access to Information Act. It is on page 56, section 16(2)(c):
16(2) The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonably be expected to facilitate the commission of an offence, including . . . information
(c) on the vulnerability of particular buildings or other structures or systems, including computer or communication systems . . .
Is that section materially different from what is in the new proposed section 8?
Mr. Leadbeater: Yes.
Senator Fraser: I am sorry to be so stupid about this, but you are raising important questions.
The Chairman: This is a fine point.
Mr. Leadbeater: The words that are different are ``could reasonably be expected to facilitate the commission of an offence.'' There has to be a demonstration of a reasonable expectation. For example, the street address of a building is a vulnerability piece of information. Whether it is or is not in a floodplain is related to vulnerability. This is known information; this is information that surely the third party cannot stamp confidential and it becomes so.
Senator Fraser: This section does refer to all such information, including third-party information.
Mr. Leadbeater: Yes.
Senator Fraser: Is it only about government institutions?
Mr. Leadbeater: It is all structures or buildings. It does not have to relate to government institutions.
Senator Andreychuk: In the section you were just discussing with Senator Fraser, it says — and I quote:
The head of a government institution may refuse to disclose any record requested under this Act that contains information that could reasonably be expected to facilitate the commission of an offence . . .
That test is by the head of the government institution.
Mr. Leadbeater: Yes.
Senator Andreychuk: If that person makes an assessment, then that assessment stands; right?
Mr. Leadbeater: No. If the head makes an assessment that the information should be disclosed, the head is required then to notify the third party, and the third party has a right to go to court.
Senator Andreychuk: My question is whether it is the head of a government institution that applies the test.
Mr. Leadbeater: Yes.
Senator Andreychuk: He or she thinks it is reasonable. It is not a reasonable standard according to a common sense standard or a public standard; it is simply the test of the person who holds the office. I say that because I went through the Public Safety Act — and Senator Fraser will remember that things were put in there that were in the opinion of the minister. While it could still go to court on an administrative review of the exercise of that discretion, you could not substitute your own common sense reason. As long as the person said, ``I went through an exercise to exercise my judgment,'' you cannot replace your own judgment for that person's.
Mr. Leadbeater: Yes.
Senator Andreychuk: I read this section to be the same. If the head of a government institution goes through an exercise, and comes to a conclusion, that is what the reasonableness is all about there.
Mr. Leadbeater: I differ with you on one small point. That provision is discretionary in the sense that you will see a ``may'' in the opening words. The head exercises discretion about whether to withhold information, as long as it is not done in a biased way or with improper motives and so forth. The test of reasonable expectation is an objective test, albeit cast in somewhat subjective terms. It is an objective test that courts do review, and courts do so on a regular basis, under the Access to Information Act since ``could reasonably be expected to be injurious'' is a test in most of the exemptions. Courts do review it; they look at the evidence and whether it is just speculation, and the courts have said it must be at the level of a probability, not a mere possibility. The court review process is meaningful and does not simply look at whether the head really did believe it or not believe it.
Senator Andreychuk: Now you are saying it is an objective test.
Mr. Leadbeater: It is an objective test cast in somewhat subjective terms.
Senator Andreychuk: Some other sections in the Public Safety Act with which I am familiar are subjective only, and some are objective, and you are saying this is somewhat subjective on an objective test.
Mr. Leadbeater: I will give you an example of the distinction. If you look at section 20(6), which is the public interest override, at page 64, the head of a government institution may disclose any record that contains information, and the disclosure would be in the public interest, as it relates to public health, public safety or the protection of the environment. Does that test relate to public interest, and does the public interest outweigh those other interests mentioned in the section? That is something a minister will decide and that can be reviewed by the court. What is the content of public interest? The content of public interest would have to be determined through jurisprudence, case-by- case, over time.
The situation is similar for reasonable expectation of injury. Those kinds of things emerge through case law, and happily there is a lot of case law on the meaning of that term in the Federal Court. Probably the most detailed cases about injury test came under the Mulroney government with the disclosure of public interest polls on national unity. That case went to court, The Information Commissioner v. The Prime Minister of Canada, and the court had a detailed discussion of reasonable expectation of injury test and what it means.
Senator Andreychuk: Getting back to clause 8(1)(b.1), there is a public interest override.
Mr. Leadbeater: Yes.
Senator Andreychuk: The term ``public interest override'' for that section should follow the case law and the jurisprudence on what we know to this date on public interest; correct?
Mr. Leadbeater: To my knowledge, the section has never been used.
Senator Andreychuk: My question is this: Are you aware of any different test for public interest override that would be applied here, or is the case law fairly consistent in how we have used public interest and therefore the override?
Mr. Leadbeater: Under the Access to Information Act, there are only two places where there is a public interest override — and one is with respect to personal information. Personal information is a mandatory exemption, subject to a public interest override. There have been cases, for example, prison break incidents, where personal information about the offender would be disclosed in the public interest. There is a process for notifying the Privacy Commissioner about that.
However, there has never been a disclosure, to my knowledge, of third-party information in the public interest, pursuant to section 20 of the statute. I take that to mean that heads of government institutions are very concerned about ever disclosing third-party information, which makes it all the more important that the information has to be sensitive in the first place. If the minister is receiving all types of information, sensitive and non-sensitive, and is hesitant to release anything in the public interest, then the scope of secrecy is expanded far beyond what third parties have had for 24 years.
Senator Andreychuk: There is a description in 8(1)(b.1). It implies that this information will be confidential, but it goes on to say what information, using the term ``vulnerability'' in there, I note. Surely, it is a balancing act the government is trying to get. We look at third parties as being part of our system, part of our protection system and part of our public safety, or we would not have them running bridges and many our services in our country. We have to have some confidence in them. There is scrutiny elsewhere in our system over their operations, et cetera. At this point, it will be kept confidential, and we give them that assurance. However, there is an ability on the part of the government to override it in the public interest.
What leads you to believe that, because of the way it is stated here, the public interest override would not be there? One of the government's most fundamental obligations is to act in the public interest — it is there at all times. I am trying not to be too legalistic here, more policy. Surely, they have that weighing act now. It gives a different kind of assurance to third parties who are part of our public safety systems, but it does not take away from the minister's or the government's absolute responsibility to override, if it is a public interest. That case law, not from your particular act, but from all public interest jurisprudence, should then apply.
Mr. Leadbeater: I do not disagree with you. In fact, our office recommends that all of the act's exceptions should be subject to a public interest override, however, the information subject to that public interest override should be sensitive information in nature. This particular clause says that we will have information that is stamped ``confidential'' by third parties — it may or may not be sensitive. I am not sure why, for example, the opening phrase of 8.1(b.1) say ``information that is supplied in confidence.'' Why does it not state, as does the previous section, in the existing act, ``confidential information supplied to a government institution by a third party''?
If it is confidential in its nature, that solves our problem, because then there is a test to be met. The fact that it is worded differently from the section 20(1)(b) of the Access to Information Act should be a red flag for the legislators, I believe, because it is making it clear that they are expecting information to be provided that is not confidential in nature and that the third party does not even keep confidential themselves.
Remember, it is a requirement for the existing section that the third party shows they consistently keep it in a confidential manner. That is gone from this clause. It is intended to be a security blanket for the third parties that does not really work for the third parties because section 20(6), the public interest override, is still there. It does not really work for the accountability of government through transparency because how are Canadians supposed to get at what happened after the fact?
Remember, all this information will then be secret forever, no matter what. As I said, the company is out of business, someone is writing a history book 100 years from now and they want to go to the public archives to find out if there was an emergency plan for that disaster and what was provided — there will be a mandatory requirement to keep it secret.
Senator Andreychuk: I have not looked at whether the government records of this section can be reopened at a later date however, it would seem it me, in this very tenuous world, that what is confidential to one person may not be to another. Technical information may seem like innocuous material to us today, but maybe with more technology that may change. It is a rapidly changing field that third parties are into. The government needs — you call it a security blanket, I look at the other — to encourage putting more on the table, and then it will be the government that will determine the use of that. It may be one innocuous fact that may save a life — because of someone's looking at it, coupled with all these other things from other sources.
That was a compelling argument — I will give the due to playing the devil's advocate. The minister came before us in a previous government to say that information is very necessary. In fact, we delegated power to a deputy minister, as opposed to another minister, which is unheard of in our British-type of accountability of the executive, precisely because of the expertise of the information and the knowledge that you know. Therefore, if the minister had it and was not available, it was in our public interest to have a deputy minister have it, rather than another minister with another portfolio, which had been the tradition. That is because of the very different world.
In reading it here, I think to myself, we will put as much information with the stamp of confidentiality on it, because the government is having to weigh and assess and provide the security. I would rather have that information in the government's hands. It may be more than we need, but there is the public interest override.
Mr. Leadbeater: Looking at it another way, it is like saying, even if a third party or the government cannot convince 13 judges in the court system of Canada that the information is sensitive, it should still remain secret. That is what this is saying. This is saying: We know so well, the Government of Canada and third parties, about what needs to be kept secret in this changing world that we do not have to justify ourselves to anybody, not the trial division, the Court of Appeal, the Supreme Court of Canada. That is the only way stuff will get it out, if a judge orders it out. Our office cannot order it out. It only gets out in two ways: The minister gives it out in the public interest, or courts order it out after the full panoply of protections and argument in the courts.
If information cannot be shown to be sensitive through that process, why would we, as a society, want to keep it a secret, other than to undermine the accountability role of government institutions, which at some point, after the fact, give an account of themselves. This material cannot ever come out.
Suppose we do have a terrible emergency or a terrible catastrophe that has not been handled well by the various authorities and the government says, we would like to tell you what we knew, but sorry, we cannot, and we do not really think it is in the public interest to give it out because this will harm the competitive position of that company, this will drive out their customers and so forth. There is a careful balance in the current statute, the Access to Information Act, to protect all the interests in the current statute. This little wrinkle just says, let us throw up our hands and give a security blanket to these third parties, even if they do not need it, just so they will cooperate.
The government has other tools. They can demand filings; they do it in every other regulatory area. However, when it comes to emergency preparedness, they are not prepared to do it. If the quid for the quo is undermining the public's right of access and the accountability of government, even for non-sensitive information, that is a troubling proposition.
Senator Andreychuk: Things that have been stamped confidential have been opened. If you consistently stamp everything confidential — there still is a test. You are taking the view that this interpretation locks it up forever.
Mr. Leadbeater: Yes.
Senator Andreychuk: Because it says ``in confidence,'' as opposed to the previous wording.
Mr. Leadbeater: Confidential information — confidential by its nature, that is right.
The Chairman: It covers it all, if you stamp everything.
Senator Andreychuk: I am saying that there could be a test there. I am not sure how you came to that conclusion. Was it by the reading of the word, and then comparing it to the other?
Mr. Leadbeater: I am comparing it, in the sense that the opening words of 8(1)(1.b) are ``information that is supplied in confidence.'' That is easy to determine. Was there a cover letter; did it say I am supplying this in confidence; are the pages stamped and so forth? Once it is supplied in confidence, that is it.
Senator Andreychuk: Perhaps Senator Joyal should try. I am still trying to get to how you come to the interpretation.
Senator Joyal: I do not want to pre-empt Senator Andreychuk, but it seems to me that there are situations whereby information objectively might not be confidential, per se. Let me take an example — the resistance of the steel used for electrical poles for the transmission of electricity.
Mr. Leadbeater: Yes.
Senator Joyal: The industry probably knows the level of resistance for that steel or aluminium or whatever. However, if the government contacts company X and asks the company to supply the various tests of resistance of that steel, to determine the level of vulnerability of the electrical transmission system, in the context where the steel is used, that might become information that the government might want to classify as ``confidential'' and not release. When the government contacts the company, it says, we would like to know the various tests of resistance and in which context the composition of the steel has been made, and we want to appraise that in the context of the transmission system. Therefore, it is clearly in the context of the vulnerability of the transmission system that the government wants to put the information.
Mr. Leadbeater: Yes.
Senator Joyal: If we were to go to a court to challenge the decision of the minister not to release it, the court must first check whether the information was sent confidentially and, second, whether it was used in the context of determining the vulnerability of the system.
It seems to me that the information, per se, out of any context, is not confidential. However, the level of resistance involved in the context of an electrical transmission system becomes something that the government might want to keep for protecting security. That is where I believe there is a line in between the two that might need second thought in the way that we read this.
Mr. Leadbeater: That is why I read you several sections — one of which is 16(2). That does not require that the information be submitted in confidence. It requires that it meet a test, which is if its disclosure could reasonably be expected to facilitate the commission of an offence. It deals with information about the ``vulnerability of particular buildings'' or other structures or systems, ``including computer or communications systems'' — so your example about the transmission lines — ``or methods employed to protect such buildings or other structures or systems.''
There is a test there that is in addition to the competitive harms test. There is a competitive harms test, which is in section 20. There is a confidential by nature, which is in section 20 — that is what you were referring to. Then there is the use section. Could it be used to commit an offence; could it be used to commit a terrorist act? Could it be used — in the other section I read you — to facilitate terrorism? Those are also protected here.
Yes, you are right, that sometimes things are not stamped confidential, that in the way they are used in the current environment, or whatever it is, they could be sensitive, I agree with you 100 per cent, and I believe the statute takes account of that.
However, you must meet the test — show that it could be sensitive. We do this almost in a routine way. Whenever the government wants to keep a secret, and someone complains to our office, we say give us your concern about what the sensitivity is. There is no other provision in the statute that says we do not have to that. We just simply say it is because someone gave it to us and asked us to keep it secret. We do not have to give you any basis whatsoever, other than someone asked us to keep it a secret.
I misspoke myself — the only time that comes into play is with third governments.
Senator Joyal: That is what I was thinking.
Mr. Leadbeater: There is a section 13 provision that is mandatory. If other governments provide information in confidence, it is mandatory, unless the other government agrees to release. If municipal governments or provincial governments provide information, it is a mandatory exemption, unless there is consent.
Senator Joyal: I still feel there is a nuance between the two criteria of clause 20(1)(b) — the fact that per se the information is confidential and second that it is treated confidentially by the third party — and the fact that we add the criteria here that it needs to affect the vulnerability of a system. It seems to me there is an element of objectively appraising the impact of the information. If I am the company providing the information, and I consider it as confidential in the management of my own affairs — I do not give it to my competitors or to my customers — and when it comes to the government I supply it confidentially in the context of the vulnerability of the system, there is a much narrower element of public interest than if it is just provided and treated confidentially by the company.
Mr. Leadbeater: Remember that this provision removes the requirement that the third party keep it in confidence themselves.
Senator Joyal: I agree, but it replaces it by the vulnerability.
Mr. Leadbeater: It does not say that it would be injurious in some way — that it would put their plant at risk — it simply says ``with respect to.''
Hence, in the examples I provided earlier, your street address, where you are located on a flood plain, whether you are near a fire station or not, all of these things relate to vulnerabilities. They are in and of themselves not sensitive. They are public knowledge. They do not have sensitivity similar to what I gave about the weak span of the bridge and where to put the explosive charge.
When you remove a burden from government institutions to show the sensitivity of information before they refuse disclosure, it goes against the scheme of the statute and the purpose.
Senator Joyal: It is not the sensitivity; it is the vulnerability of the system. That is what the government must prove to be allowed to refuse the disclosure. It is not the sensitivity of the information as a result of the provider's habit of treating it as confidential. It is the fact that the information would make the system more vulnerable. There is where there is, in my opinion, another test that substitutes itself to the one of the provider. The provider must check if, in his own operation, he treats it confidentially. Here, that is no longer the case. The impact of that information on the vulnerability of the system is a test and a test you can fight.
Mr. Leadbeater: All I am saying is that it is a test that sweeps in public information.
Senator Joyal: It was sweeping the information as well before.
Mr. Leadbeater: No. Previously, you had to show it was sensitive.
Senator Joyal: Section 20(1)(b) states — and I quote:
(b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party.
It is the third party that determines the sensitivity.
Mr. Leadbeater: No. The phrase, ``that is confidential information,'' has been interpreted by the courts as a test requiring confidentiality in its nature. It shows that it relates to your business practices and has a competitive concern to it, if disclosed.
Remember, when the minister appeared here, he said, ``the purpose of this is to protect sensitive information.''
Senator Joyal: Yes, but the proposed (b.1) contains two elements, the fact it is provided in confidence, you stamp confidential on the letter or you write this is supplied to you in confidence, is the first objective element, and then that it has some bearing on the vulnerability of the system, you have to prove that as well. It is not just that, ``I contend this would impact the vulnerable.'' Somebody will check the vulnerability of the information; you will check that.
Mr. Leadbeater: I will. There are things that we will agree do relate to vulnerability but that are not sensitive, because they are public or innocuous information. However, they will relate to vulnerability. You are vulnerable to power outages. That will relate to vulnerability, and if it is stamped confidential, it will remain secret.
Senator Joyal: Yes, but you will have to determine the level of vulnerability.
Mr. Leadbeater: No. The level does not matter. If it relates to vulnerability under these terms, then it is mandated secret forever. It does not matter whether it is inherently sensitive or not.
Senator Fraser: I have a supplementary on this point. Are you seriously suggesting that a court would say, for example, that a street address or a telephone number, corporate stuff that is in fact public by its nature, is confidential information, even if it had been part of a document that had ``in confidence'' stamped on the cover?
This seems to me to be stretching it a bit. The fact that there is a fire station three blocks down the road, even if it is a two-inch thick document the whole of which is stamped confidential, surely no court in the land would say that you are not allowed to release that.
Mr. Leadbeater: First, your puzzlement about such an outcome is precisely why we have a concern about this provision, because it is an outcome. You are puzzled at how such information could ever be kept confidential. Why is it that this is written so that it would protect that? That is turning the question onto itself.
Second, if you are saying that in order for this provision to be sensible, courts would have to read in words, I am saying, no, courts will not always read in words. If you think they should be reading in words, why not put in the words? It is simple to insert a word, and that is the same word that is in the previous section of the statute, an objective test that something is ``confidential'' or ``sensitive.'' There are many qualifiers. The minister used the word ``sensitive.''
To just have it open-ended and say ``Let's hope nobody will read these words as written,'' I am not sure that is the proper way to make the law.
Senator Fraser: I am not persuaded here.
Senator Joyal: I do not want to argue with you endlessly, but I think a court would differentiate between a person stamping ``confidential'' on the information, ``concerns a vulnerability'' — hence, the ritual formula of vulnerability and that is it, the door is closed automatically, you have used the word vulnerability — and the exercise through which a court goes and to determine whether something is vulnerable, yes or no.
It seems to me that, generally speaking, the court — as I say, on the basis of the decision of La Forest, knowing it is a quasi-constitutional offence — will look into whether something is not overstretching the concept of vulnerability, just to place the magic word in the first line of the letter.
It seems to me the court has gone beyond that. I could provide you examples whereby a court has not been deterred to review a decision of the administration, even though there was a section saying that there should be no appeal for any decision of that administration. The court has not been barred from reviewing that, even though it was plainly written in the act that the court was not look into it. The court determined that it had a public interest responsibility to ensure that everything goes well. That is why I am hesitant to follow you on your pronouncement of your two words — confidential and vulnerable.
Mr. Leadbeater: At a general level, I do not disagree with you. The courts will try to make a reasonable determination. When they have two provisions in the same statute with respect to the vulnerability of buildings and systems — I read 16(2) to you, a reasonable expectation of injury test. A court will read that 16(2) with respect to vulnerability and compare it to proposed section 8 and see there is no test and the court will try to interpret what Parliament intended. I think the court will say that Parliament intended to leave this all up to the third parties. Everything third parties mark ``confidential'' will be secret because if Parliament had thought otherwise it would have used the test it used with respect to vulnerability in section 16. There is an internal inconsistency there that will make it difficult for the court to do what you just said. How do you explain the vulnerability of buildings and systems using two forms of words?
Senator Joyal: As you said in your first comment, it is redundant. That was your first comment: Allow me to put myself in the shoes of a judge.
Mr. Leadbeater: Unless it has some other meaning, which is the one that I fear will be taken.
Senator Joyal: I have seen many statutes that contain redundancies. At times, I have been accused of amending legislation with a redundancy effect. I will put it another way. Has there been any jurisprudence on the interpretation of section 16(2)(c)?
Mr. Leadbeater: There has not been any that I can recall, but I am not sure. I know that the test — reasonable expectation of injury — has been subject to a significant amount of jurisprudence in respect of what it means and what kind of evidence is required to support it. Therefore, we have a good idea of the level of detail the court would require and that we would require in the course of investigation to determine.
Senator Joyal: Could you provide that information to the committee so that we can try to understand the court process of interpretation?
Mr. Leadbeater: Yes, absolutely.
The Chairman: Are there further questions, senators? It seems we have canvassed this thoroughly.
Mr. Leadbeater or Ms. Gendron, do you have anything further you wish the committee to hear?
Mr. Leadbeater: Thank you, Mr. Chairman. We appreciate the attention of the committee.
The Chairman: Senator Joyal has one last question burning in his soul.
Senator Joyal: I do not want to keep people any longer than necessary but we are trying to understand this better.
I would ask you to turn to the last paragraph on page 6 of your presentation, which states that if there were an incident of terrorism or natural disaster to which the government does not properly respond, MPs, senators or members of the media and public could not find out the extent to which the government had been properly forewarned, unless the government was prepared to disclose the information in the public interest.
That caused me to reflect. When the U.S. Senate committee investigated 9/11 to learn about what information the government had before the fact and how it dealt with that information, was the government able to claim interest of national security as a reason to refuse to release that information? According to the report, they had access to a great deal of information that likely would have been classified when the government received it.
Mr. Leadbeater: They do not have an exemption like the one that is proposed here. No province has an exemption similar to what is being proposed here, even though all the provinces will be preparing emergency plans. No section states ``mandatory secrecy for whatever the third party wants.'' That is only here in this bill, nowhere else.
Senator Joyal: In none of the provincial statutes in relation to their respective preparation of emergency plans is there a broad exemption that would prevent them from releasing information of that nature.
Mr. Leadbeater: There is no mandatory class test exemption like the one in this bill before you.
Senator Joyal: Could you provide us the section of a provincial statute that in your analysis could be alleged by a provincial government to refuse to disclose information because of vulnerability of some provincial system?
Mr. Leadbeater: For example, Alberta has section 20(1), which states that the head of a public body may — ``may,'' discretionary — refuse to disclose information to an applicant if the disclosure could reasonably be expected — reasonable expectation — to harm the security of any property or system, including a building, a vehicle, a computer system or a communications system.
While this is approach, discretionary injury test — there is a burden — but it is protected. We have not been able to find any circumstance in which the vulnerabilities of any building, system or structure — whether government or private-sector buildings — in the 24 years since this act has been in force have been put at risk by virtue of the Access to Information Act and its existing provisions.
The Chairman: Thank you. The witnesses have agreed to provide the committee with additional information. In the event that the committee decides to pursue this amendment, it might be helpful to know what it would look like so that we could give it serious consideration.
Mr. Leadbeater: Mr. Chairman, I recall only one thing that I was asked to provide — information on the jurisprudence with respect to the injury test. Was there anything else?
The Chairman: The second request is for what your proposal would look like. Thank you for appearing; you have been most helpful.
The committee adjourned.