Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 50 - Evidence - October 18, 2018
OTTAWA, Thursday, October 18, 2018
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 10:34 a.m. to continue the study of the bill.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to the committee. We are continuing our study of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
We are pleased this morning to welcome Ms. Gould, who is the minister responsible for democratic institutions.
[English]
It is our pleasure, Madam Minister, to welcome you this morning. I see you are accompanied by Ms. Riri Shen, Director of Operations, Privy Council Office. Welcome.
[Translation]
You obviously know our committee’s procedure. We will listen to your presentation, and then there will be a discussion with our honourable colleagues around the table.
[English]
The floor is yours, minister.
Hon. Karina Gould, P.C., M.P., Minister of Democratic Institutions: Mr. Chairman, please allow me to thank you and all honourable senators on this committee for giving me the opportunity to address you this morning. Good morning.
I had the pleasure of appearing here in June regarding Bill C-50, An Act to amend the Canada Elections Act (political financing). I remember our discussions at the time to be quite constructive. As a result, as of December 21, 2018, or six months after Bill C-50 receives Royal Assent, all registered parties represented in the House of Commons will be required to play by the same rules by publicly reporting the names of persons attending their most profitable fundraising events.
[Translation]
With respect to the standardization of rules, I am proud to be responsible for Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments to other Acts. This bill would make necessary changes to our elections administration system, while improving, securing and reinforcing our electoral system. For example, it will guarantee fair and equitable rules during the pre-election period by regulating partisan advertising, a measure made necessary by the introduction of fixed-date elections.
[English]
As we speak, the House of Commons Standing Committee on Procedure and House Affairs is conducting the clause-by-clause review of that bill. Should the bill be referred to your committee for study, I would be pleased to appear and present our government’s vision of a modern, accessible, transparent and secure electoral process for the 21st century.
However, this morning, as was noted, I am here to discuss Bill C-58.
The Chair: I was getting nervous.
Ms. Gould: Don’t worry. I know why I’m here. I’m just so excited, because I get so many opportunities to appear before your committee.
[Translation]
This bill, which includes long-awaited amendments to an access to information regime that has not been significantly updated for 35 years, reflects phase one of our government’s commitment to modernizing the Access to Information Act.
[English]
Recognizing that my colleague the President of the Treasury Board addressed you on this initiative before Thanksgiving, I will focus my remarks today on provisions that will increase transparency across our democratic institutions by subjecting them for the first time to standardized and legislated proactive publication requirements. For the first time, Bill C-58 will subject the Office of the Prime Minister, ministers’ offices, senators, elected members of the House of Commons as well as administrative institutions supporting Parliament to standard proactive publication requirements.
[Translation]
In the future, Canadians will no longer need to file access to information requests to obtain mandate letters, transition books, information packages intended for ministers and documents outlining travel and entertainment expenses for ministers and their exempt staff.
All these documents will be published on a timely basis on open government websites. The same will be true of contracts of more than $10,000 and documents prepared by the departments for question period and testimony before parliamentary committees.
[English]
Of course, exemptions and exclusions applicable to the Access to Information Act’s current request-based regime will apply to the new proactive publication requirements. In other words, the protections currently afforded to some classes of information, such as personal information, information obtained in confidence from another state or information related to national security, will continue to apply under the proactive publication regime.
[Translation]
Now I would like to talk about some of the concerns that have been raised.
In our Westminster-style parliamentary system, the Senate and House of Commons and their respective members enjoy privileges without which they would be unable to perform their duties. The existence of such privileges, as well as their origin, are rooted in our Constitution.
[English]
The objective of Bill C-58 is not to alter the procedure by which houses of Parliament determine questions of privilege. While the new section 71.12 of the Access to Information Act would empower the Speaker of the Senate and the Speaker of the House of Commons to exclude some documents from proactive publication should their disclosure constitute a breach of parliamentary privilege, it will be up to each house to instruct their Speaker on how to exercise that power.
From a more technical standpoint, I have heard some comments regarding the requirement to disclose information about contracts of a value of more than $10,000. While this requirement is very important, some provisions of the bill can be understood to mean that each amendment to such contracts would also need to be disclosed. These amendments are frequent and yet are often of insignificant value. As a result, this new requirement could soon represent a heavy burden for ministers’ offices and institutions that support Parliament. I would therefore welcome an amendment that would only provide for the disclosure of such amendments when their effect is to increase or decrease the value of the contract by more than $10,000.
The House of Commons has also brought an amendment to the bill that would give more time — 60 days instead of 30 days — to government departments to publish contractual information at the end of the fiscal year. In order to ensure consistency in the administration of these provisions, I would also welcome an amendment that would align on that new timeline the equivalent provisions applicable to ministers’ offices.
Finally, clause 37 of the bill enacts a new section, 78, which requires ministers to publish an annual report of their office’s expenses paid out of public monies. However, the current drafting of the provision would prevent these reports from being published — as is currently the case — through the Public Accounts of Canada. As this reporting method has proved its efficiency, and in order to avoid the creation of a new reporting mechanism, I would also welcome an amendment that would allow the current practice of publication through the Public Accounts of Canada to continue.
[Translation]
Honourable senators, Bill C-58 proposes measures that will modernize the Access to Information Act and enhance the transparency and accountability of Canadian democratic institutions.
These measures will vastly increase the availability of information pertaining to the Prime Minister’s Office, the offices of the ministers, parliamentarians and the institutions that support Parliament.
[English]
The reforms proposed in Bill C-58 are an important step in the ongoing review and modernization of the Access to Information Act, and I look forward to working with all the members of this committee to enhance accountability.
Thank you, Mr. Chair and honourable senators, for having me here this morning. With that, I am available to answer your questions as best I can. I also have Ms. Riri Shen with me here from the department who can help with any technical questions. Thank you.
The Chair: Thank you, Madam Minister.
[Translation]
Now I am very pleased to invite the Honourable Senator Boisvenu, vice-chair of the committee, to open the debate this morning.
Senator Boisvenu: Thank you very much, Mr. Chair. Good morning, minister. Madam Minister, I’m trying to see in this act what it is your government proposes to modernize. You talk about voluntary disclosure, information that will now be accessible, the Prime Minister’s Office and so on. Last night, I worked with my office to determine whether this information was already available. We opened up Google and just typed in “voluntary disclosure, travel expenses,” and I found your expenses. I know you went to Toronto on January 15 and to Montreal on January 25 and that you spent $2,300.
I figured that, if that’s what Canadians want to know, they can find it out using systems that are already available, that can disclose that information going back to 2003. The system’s been in existence for 15 years. What Canadians want to know, for example, is what happened in Mr. Charest’s office when an employee wrote notes on a Post-it when judges were being appointed to say that so and so was a Liberal or whatever. That’s what Canadians want to know; they want to know the information that’s available to ministers and the prime minister on which they rely to make decisions that affect the lives of Canadians. That would be modernizing the Access to Information Act; that would provide transparency.
I look at this bill — and I’m not the only one to criticize it — and I think of the host of important people, such as the former commissioner and the Canadian judiciary; people are highly critical of this bill, and, for many of them, it even represents a step backward. I would like you to explain to me how this bill will provide more transparency than we already have, and how it will modernize access to information in Canada so we are no longer ranked fifty-fifth in the world, and thus, ultimately, as one of the worst countries from the standpoint of access to information.
Ms. Gould: Thank you, senator. As you know, the bill contains an exhaustive list of information networks. There are a number of things, such as mandate letters, which have been disclosed by this government for the first time, and voluntarily. For the first time, we are legislating that these documents must be released into the public domain. That was never previously done. It was Prime Minister Martin, a Liberal Prime Minister, who started the movement to ensure that documents concerning travel expenses and contracts would be disclosed and in the public domain, as a result of which it is difficult for subsequent prime ministers and governments not to do so.
Now, if a government is elected and doesn’t want to disclose that information, it will have to introduce a bill to remove those documents from the public domain. Consequently, this is really something that modernizes the act and ensures that these documents will be in the public domain.
Senator Boisvenu: Madam Minister, these documents have been accessible since 2003. Mandate letters have already been available for a few years now. I ask you again: How will this bill revolutionize access to information in Canada?
Ms. Gould: I don’t agree with your observation because these documents are accessible only if governments willingly make them accessible. If this bill isn’t passed, there will be no reason for a future government to decide not to publish them.
Senator Boisvenu: Apart from mandate letters, which will be included in the act, is that what’s going to revolutionize access to information?
Ms. Gould: This is really important because, if you think about it, we knew nothing about mandate letters before 2015, when the current prime minister decided to make them public. Only the ministers who received them, and perhaps their deputy ministers, had any knowledge of them, no one else. Now they are a tool for Canadians, who can thus determine whether the government is doing what it promised to do. They can see the objectives of every minister and make them accountable for what they haven’t done.
It’s also important in the disclosure of briefing notes, for example. Canadians now need only file a request for access to that information. The change under this bill means that these notes will be published within time frames that are known to Canadians and that Canadians will have access to more information.
[English]
Senator McIntyre: Thank you, Minister Gould, for your presentation.
My question is one of clarification on the issue of the Information Commissioner’s orders. As I understand, under Bill C-58 — this was confirmed by Minister Brison when he testified before this committee on October 3 — the commissioner’s order will be legally binding without the need for certification. The current commissioner, Madam Maynard, disagrees; she prefers to have orders certified. In your opinion, is the commissioner’s order legally binding or, as recommended by the commissioner, should it be certified by the court?
Ms. Gould: If you don’t mind, I’m going to turn this over to Ms. Shen because this is an aspect of the bill that I was not part of the drafting of.
Senator McIntyre: Absolutely. Yes.
Riri Shen, Director of Operations, Privy Council Office: The government’s position is that the order-making power of the Information Commissioner is legally binding. I understand that the current commissioner has made a request for those orders to be certified in court. However, from a legal perspective, the view is that the orders, as they are, are in fact legally binding and there is not a need to have them certified.
Senator McIntyre: I find that there is confusion. If a government institution complies with the commissioner’s order, that’s the end of the matter. On the other hand, if an institution doesn’t comply with the order, it could seek a review of the matter by the Federal Court. Assuming that a government institution neither challenges nor complies with an order, the commissioner could enforce the order through mandamus proceedings, which is a long process and will obviously delay access to information. My question is, why not certify the Information Commissioner’s order at the outset?
Ms. Shen: I’m not in a position to respond to that question as that aspect of the legislation was not part of our —
Senator McIntyre: Maybe we should address these questions to the Minister of Justice?
Ms. Gould: I will endeavour to take that back and return with a response from my colleagues on that, because it’s not part of the legislation that we were responsible for.
Senator McIntyre: Thank you.
Ms. Gould: We’ll certainly take that back.
[Translation]
Senator Carignan: My question concerns an issue referred to in yesterday’s Question Period, the discussions between Minister Scott Brison and James D. Irving concerning the Halifax and Davie shipyards. The President of the Treasury Board said this:
My job as Treasury Board president includes expenditure review and due diligence to ensure the integrity of government contracting. That is exactly what I did, my job.
Am I to understand that, under your bill, if I asked to see the discussions between Scott Brison and Mr. Irving to determine whether Mr. Brison in fact did his job, that would be denied?
Ms. Gould: Could you repeat the question?
Senator Carignan: If I file an access to information request concerning the correspondence between Scott Brison and James D. Irving concerning their discussions on whether to grant Davie the contract to renovate the ship the Asterix, would I get access to those documents so I could validate whether Mr. Brison had done his job as he said?
Ms. Gould: The access to information rules that now apply would be the same under this bill as regards ministers’ offices and the Prime Minister’s Office, except that publication of some documents would be mandatory, not voluntary.
Senator Carignan: Then I understand that you feel it is more important to publish the fact that you went to Toronto on I don’t know what date and that the trip cost $1,000 or $500 than to publish exchanges with businesses, representations or discussions that may have consequences amounting to billions of dollars and hundreds or thousands of jobs.
Ms. Gould: If an exchange takes place between a business and a person seeking to influence the government, you know perfectly well that’s all covered by the Lobbying Act, and the person mentioned who had contacts with a minister or a public official would have to report them to the Lobbying Commissioner.
Senator Carignan: My question concerns exchanges of letters and emails. I wouldn’t have access to them under your bill.
Ms. Gould: That’s covered by the Lobbying Act. If there were any contacts...
Senator Carignan: I’m not talking about contacts; I’m talking about exchanged documents.
Ms. Gould: You would have to report to the Lobbying Commissioner.
Senator Carignan: My question concerns the documents. You are dealing with the Access to Information Act. What about documents?
Ms. Gould: That will follow the normal process.
Senator Carignan: You understand why we are ranked fifty-fifth. I understand that you like being ranked alongside Uruguay on other issues. We are currently ranked with Uruguay for access to information, and Afghanistan is ranked first. Doesn’t that bother you?
Ms. Gould: Do you consider us equal to the Government of Afghanistan on access to information?
Senator Carignan: I’m not the one who thinks it; it’s the Centre for Law and Democracy. It ranks countries, and it ranks us fifty-fifth.
Ms. Gould: It’s one thing to have a statute and another to administer it. The people who do these rankings rely on the act as it’s drafted, not necessarily as it is implemented. I believe Canada is really one of the most open and accessible countries in practice. However, what is important is that this bill is a first step. Nothing has been done to the Access to Information Act for 35 years. This is a first step, and the bill requires that a process of reflection and evaluation take place after one year and that the act be renewed every five years. That’s important, and it’s a step toward improving and modernizing our Access to Information Act.
Senator Carignan: Earlier your commitment wasn’t to take a first step but rather to have one of the most open governments in the world. That’s not what you’re doing. Your election promise wasn’t to take an initial step. Why not seize the opportunity we now have to make Canada number one, not on cannabis, but rather on access to information, the communication of information, to create a transparent government? Aren’t you interested in being ranked number one in that area?
Ms. Gould: We’re making improvements to the Access to Information Act, and I believe this is an important step. No changes had been made for 35 years, and we’ll see some differences. However, we have to pass the bill first for that to happen.
[English]
Senator Gold: If I may follow up on this conversation, you and others have described this as the first step towards the modernization. I think that we in the Senate appreciate the openness to entertain some amendments. We do appreciate that. Can you give us your thoughts on what you have in mind for the next phase of phases? One year hence? A lot can happen in one year. Can you give us some sense of what further steps, beyond this bill, you think would be appropriate for us to move forward in modernizing and enhancing the transparency of our institutions?
Ms. Gould: One thing that is very important as we move forward with access to information is to ensure that we are providing information in a timely way to Canadians, and cost effectively. One of the reasons we moved forward with this initial step with regard to public disclosure of these documents is because these are the documents that are most requested by Canadians, and it can take quite awhile to get them. If this is the information that Canadians are most interested in, let’s provide this information as quickly as possible to them and in a way that is as open and transparent as possible. One of the things we should continue to look at is if there are other pieces of information being sought and not received in a timely fashion within the act. Those are the things that we should be looking at to figure out how we can get those to Canadians as quickly and as cost effectively as possible.
Senator Gold: Colleagues around this table have raised questions about different institutions where some of the delays seem shockingly long. We have also heard that perhaps some of it has to do with lack of resources or the difficulty of recruiting and retaining qualified personnel. Perhaps it’s a bit outside of your area, but can you comment on your government’s appetite and willingness to increase the resources to the institutions responsible so that Canadians can get the information in a more timely fashion?
Ms. Gould: It’s an interesting question. I think it’s a reflection of a demand-based system versus an open-by-default system.
The fact that we have a demand-based system means that each time a demand is made, there are people behind it who have to go and find and collect the information and ensure it’s in a format that is available for the public. As I’m sure all senators can appreciate, there are certain things that have to remain within the confidences of government, whether that’s information from another state with regard to private information or with regard to corporate interests, as well, and for their own protection. When you have to be continuously doing that, that requires a lot of resources.
If there could be a move toward a more open-by-default position where it’s easier for Canadians to search for that information on their own, that would be where we would be looking to move with regard to a more modernized Access to Information Act. That also requires a change in infrastructure and a change in how we do business. That is quite a large change in terms of how a government would operate, but I think it’s a direction that would be worthwhile going in.
Senator Gold: Thank you.
The Chair: That would be a government with more computers and less paper?
Ms. Gould: It may not be less paper, but it would be one where the user who is seeking the information would be able to find it more easily on their own as opposed to asking for a government official to do that work for them.
Senator Batters: Under this particular revamp of the legislation, the Speaker of the Senate and the Speaker of the House of Commons will have the power to exclude documents because of parliamentary privilege, and then there’s a new section, 71.14, that provides that their determination is final on that matter. It says:
A determination by the Speaker of the Senate, the Speaker of the House of Commons or a delegate of either Speaker that a publication would constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final.
I’m wondering, minister, if you’re aware that the Speaker of the Senate is quite a different situation than the Speaker of the House of Commons. The Speaker of the House of Commons is elected by the members of Parliament and is very much a servant of that house. Meanwhile, the Speaker of the Senate is appointed by the Prime Minister to that particular position and serves as the Government of Canada’s representative at very high diplomatic levels. As such, the Speaker of the Senate has a very high ranking in the order of protocol. Given that crucial distinction that the Speaker of the Senate owes his appointment to that particular position to the Prime Minister of Canada, why are you treating both Speakers the same under that section?
Ms. Gould: Ultimately, because parliamentary privilege resides with each chamber and the Speaker is the deciding figure of each of those chambers, that’s where that ultimate decision-making power will reside. However, as we have made very clear, parliamentary privilege is absolutely the purview of each chamber, and we as a government — and, I believe, Canadians feel it is important to be transparent about resources that are being spent — have complete respect for the privilege in each chamber.
Senator Batters: While you referred to both Speakers as being the deciding figure of the chambers, again there is an important distinction in that the Speaker of the House of Commons has that role, yes, but the Speaker of the Senate’s role has an important distinction in that while they make rulings, the Senate Chamber as a whole actually has the ability to overrule a Senate Speaker by a vote of the chamber. So the Senate Speaker is really one among equals. I think you’re treating both chambers the same, and there is a very important distinction. I don’t understand why that distinction hasn’t been taken into account in this critical decision. You’re basically allowing, under that section, to say that, for the Senate part of it, the Government of Canada is making that final decision.
Ms. Shen: If I could just make a clarification, the act sets out a requirement to designate an administrative head for each institution, and in this instance it was determined that it would make the most sense for the Speakers of the respective houses to be the administrative heads who are designated responsible for what documents are disclosed under proactive disclosure.
The Chair: I don’t want to intervene, but, as you know, normally, in the Senate, the Speaker would request authorization from Internal Economy, or CIBA, before making any decision with respect to the privileges of the house for the very reason that Senator Batters —
Ms. Gould: I would say this act in no way changes those internal processes. It just provides —
Senator Batters: For the Internal Economy Committee for the Senate, the Speaker is not a member of that, necessarily. Sometimes the Speaker is.
The Chair: He doesn’t preside as it is in the statute of the —
Senator Batters: Unlike the House of Commons, we have a chair of the Standing Committee on Internal Economy, Budgets and Administration, and that is currently Senator Marwah, and Speaker Furey does not even sit on Internal Economy. His duties don’t necessarily deal with those types of issues.
Again, I think your government should reconsider how they are treating both speakers the same, because they have critical distinctions.
Senator Pratte: Thank you for being here, minister.
I’m concerned with the fact that the proactive disclosure system is very different from having access to information because the government decides what it discloses proactively. I understand that’s a first step, and I appreciate that, but I’m looking for a way where maybe the Information Commissioner should have some oversight role of Part 2 of the bill, the proactive disclosure. I’m not saying they should have their full investigative powers, but I believe it would be very interesting and reassuring if the Information Commissioner could report on the functioning of the proactive disclosure system. I was wondering what you thought of this idea. I think it would be very reassuring to know that there is a neutral authority that looks at how the government is doing regarding proactive disclosure.
Ms. Gould: It’s not something that I have thought about before, so I would need to reflect on it a bit more before coming up with a firm answer for you. It’s certainly something that I will think about, and perhaps we can discuss it further.
Senator Pratte: Thank you.
The Chair: Could you commit to come back to us before we wind up our study on this issue?
Ms. Gould: Sure.
The Chair: It has been raised by Senator Pratte, and it was raised yesterday with the Information Commissioner, and I think it would be helpful to members of the committee to know your stand. I think Senator Pratte has very well spelled out the context into which he sees the capacity of the Information Commissioner to report on the way that the government is enforcing its proactive responsibility to release the information.
Ms. Gould: I’d be happy to come back.
Senator Pratte: Thank you very much.
The Chair: Thank you, minister.
Senator Dalphond: To follow up on the comment of my colleague Senator Pratte, I think clause 91 does provide that the Information Commissioner has no authority or power in connection with Part 2 of the bill, so we have to understand that Part 2 is an honour system. This is a first step. This is as good as the person who is supposed to comply wants to comply. There is no mechanism to check if there is full compliance, half compliance or no compliance whatsoever.
Ms. Gould: There was an amendment at the House of Commons level to ensure that for whatever was released publicly, if there was a demand, the original document would be released as well so it could be compared, and that is within the act. So yes, while it is an honour system, there is that check in there. I think that’s important as well.
Senator Dalphond: I have a small, technical question.
The Chair: We have time, Senator Dalphond.
Senator Dalphond: I will go to technical questions. I have looked at sections for disclosure for judges. As you know, I was a former judge, and I look carefully at these things. I have the briefs before the House of Commons committee about that, and I know there are serious concerns raised by judges about it.
One of my questions is related to clause 90.25. Once you have made the disclosure for judges, it then comes to the Canadian Judicial Council. It says that the provisions that are applicable to the courts and the judges are not applicable to the Canadian Judicial Council. Why is that so?
Ms. Gould: I would have to endeavour to get a response for you because that was not part of the bill that I was responsible for, but my team will try to get something back to you on that.
The Chair: Senator Dalphond, I think there is a need for this committee to listen to the Minister of Justice. That would be the proper opportunity to raise that question, because the Minister of Justice, of course, is responsible for the relationship with the judicial system in Canada.
Senator Dalphond: You’re right, Mr. Chair.
[Translation]
Clause 77 of the bill has equivalents in several sections respecting contracts over $10,000. Do contracts, including service contracts, include the hiring of ministerial employees? Is it a service contract when you hire someone to work on your team for a year?
Ms. Gould: Service contracts are different from personnel contracts.
Senator Dalphond: That doesn’t concern ministerial employees in the minister’s office as such.
Ms. Gould: No, because that would be personal information.
[English]
The Chair: If the minister employs a person on a contractual basis to assist him or her in whichever capacity, that contract would not be disclosed to the public, even though it’s paid for by taxpayer money.
Ms. Gould: I think the difference would be with regard to contracting. If you were contracting a professional corporation or an entity to do work for you, that would be disclosed. However, if you are hiring someone, even on a contractual basis, I do not believe that that would be disclosed because that would be an employee versus a service provider.
Can you clarify that, Ms. Shen?
Ms. Shen: I’m sorry, I don’t have the answer in front of me. I’ll have to return to you with that.
The Chair: Could you come back to us with a clear answer?
Ms. Shen: Yes.
Ms. Gould: But the intent is not for the information of employees to be disclosed. It is for service contracts.
[Translation]
Senator Dalphond: I have a final technical question. Clause 74 of the bill —
[English]
It is in connection with briefing materials. More or less it says that briefing materials that have been prepared by a government institution have to be disclosed within a certain time. Do I understand correctly when I assume that briefing materials prepared by the political staff will not have to be disclosed?
Ms. Gould: That is correct.
Senator Dalphond: So disclosure applies only to civil servants?
Ms. Gould: Yes.
Senator Dalphond: Thank you.
Senator Lankin: Thank you for being here, minister.
I appreciate your expressions of areas where you would welcome amendments. I know that the committee will take a look at those areas. That’s appreciated.
I have a couple of questions around different areas. First of all, I want to revert to the issue that Senator Batters raised with respect to the Speakers of the two houses. I think it’s very important to understand the concern, at least as I understand the concern that she’s raised and I agree with. The concern is about the fact that the decision of the Speakers is final. It’s not about the fact that we can’t have the internal processes that currently exist continue to exist. The issue is that in the Senate, the Speaker will make a decision and it is never final. It is accepted or not by the Senate as a whole. I think that there is a need to look at that particular wording and separate out the two. I understand the decision being final in the House of Commons, but you’re overturning a huge cultural and significant legal difference with respect to the two chambers. I just want to make that point.
Ms. Gould: I guess one of the questions that I would have, then, is with regard to where the accountability would lie.
Senator Lankin: With the Senate as a whole.
Ms. Gould: With the Senate as a whole.
Ms. Shen: My understanding is that the purpose of that provision was to set out that the finality of the decision was a reference to the jurisdiction of both houses to determine privilege and, therefore, to exclude explicitly the jurisdiction of the courts, so to maintain the separation of powers and if there are clarifications that can be made to address the concerns, but I don’t think that the intention of that provision was to make the Speakers’ determination final in respect of the house itself but simply that the jurisdiction of the courts was, for greater certainty, being excluded.
Senator Lankin: I think that’s a very important clarification, and I would support what the intent is. I’m worried about the words.
The Chair: I think, Senator Lankin, in relation to that, maybe the committee could request an opinion from the law clerk of the Senate on his interpretation of clause 71.12, page 25. On the basis of that legal opinion, the committee could consider if there is a need for an amendment to clarify the intention, to ensure that the text reflects the intention that the bill proposes and if the wording reflects the procedure internal to the Senate as a chamber of Parliament.
Senator Lankin: Thank you, chair, I think that would be very helpful. I thank Senator Batters for raising this issue.
The Chair: The clerk will make sure we have that.
Senator Lankin: I have two other areas that I want to explore. One is with respect to the phase 2, or the next look at this legislation.
Colleagues have raised the international standings and the order where we were. Yesterday, when we talked to the commissioner, she made it very clear that that was a ranking based on a reading of legislation, not the administration and whatever. I want to make that distinction. What it led us to was questioning her about what is the best end state, and I don’t think she clearly knew. She had some areas but said that this is an area that would welcome study.
If the government is thinking of phase 2, have you done a comparison of legislation in other jurisdictions? If so, can we see that? If it has not been done yet, would you welcome Senate work to look at such a comparison and support that work with whatever information the various ministers have around this?
Ms. Gould: That’s what I was trying to say when I was responding to Senator Carignan, that it’s important to distinguish between what is on the books and what is actually done in practice. I would very much welcome a study by honourable senators to look into this in terms of best practices and what is most effective around the world.
The other thing that I think is important, and it was in response to Senator Gold’s question, is “open by default” is a good way of doing things. I think that in the 21st century, where people are savvy and interested and can get most of the answers they want from Google, we should be able to provide information to Canadians in a much more accessible format in a much more timely way. We still have to consider that there is some information that would be proprietary to government and must remain that way for integrity, privacy, security and safety purposes.
I think that there is definitely more work to be done in this area. I see no reason why Canada cannot lead on this front, but we absolutely need to think about a way that is user-friendly but also achieves the objectives that we have as a government to protect Canadians as well.
Senator Lankin: Thank you.
My last question is with respect to reviews. There is, as you referred to, clause 93(1), where the minister, and I assume that is Mr. Brison, will undertake a review of this act within one year and then every five years.
Concern has been raised about the fact that this is a ministerial review only, and in this case, your ministry, where you have a mandate to lead, has a critical input into this because it is about democracy and it is about how our institutions function. Although there is proposed section 99, which allows the administration of the act to be reviewed on a permanent basis by either a committee in both or a joint committee, however Parliament decides to tackle that. That’s something that I think we will have to have a discussion about. It’s pointed out that that is for administration of the act. Personally, I think that means if there are problems with the administration, you also look back to the act.
Why would you, as a government, limit the review to a ministerial review only? Perhaps one year I understand ministerial, but the five-year review to come back to a committee in both parliaments? It’s on page 35, proposed section 93(1). The permanent review of administration that I refer to is page 37, proposed section 99. Those are the two provisions. One is ministerial review, one year in five, and the other is a permanent, ongoing review of the administration by Parliament. My question is why not one of the reviews that are currently — like the five-year review currently restricted to a ministerial review, being proactive and open by default, not one that comes back to Parliament, given that the essence of this bill is about democratic access?
Ms. Gould: My understanding of the five-year review is that it is reported back to Parliament.
Senator Lankin: It would be reported back, but the review is not being undertaken by Parliament. There’s a difference in terms of —
Ms. Gould: I understand the difference that you’re referring to. Parliament could choose to review it of their own accord. With regard to the ministerial review, it would be reported back to Parliament, and if Parliament wanted to pursue it further, they could at that time. That was the intent. It’s not to not have that engagement.
Senator Lankin: Thank you.
Senator Frum: Minister, one of the reasons to restrict access to a document is if the document is deemed to be cabinet confidence. I’m wondering if you considered including in the act a definition of what is and is not cabinet confidence?
Ms. Gould: I think cabinet confidence is determined by cabinet. That’s an important distinction and one of the things that I think is important. Actually, in the 2002 Supreme Court ruling, Babcock v. Canada, the Supreme Court does explain that it is important for cabinet to be able to make decisions and have frank discussions and conversations without Canadians necessarily hearing those conversations so that they can speak frankly and make tough decisions. I do think there is a role for confidence and cabinet confidence.
Senator Frum: We spoke earlier about decision makers. In that context, who becomes a decision maker about what is private and what should be subject to transparency?
Ms. Gould: Cabinet, but appropriately so.
Senator Lankin: Having sat at a cabinet table, I get it.
Ms. Gould: It is very important.
Senator Frum: I understand, but it can also be a shield as well. If the government has the discretion over what the government deems to be private —
Ms. Gould: But there’s government for a reason. They have to make difficult decisions, and that is an important conversation to be had.
The Chair: It is sealed, as you know, with the national archives. No Canadian can have access to cabinet discussions. I myself have been part of cabinet, and maybe Senator Carignan has also been, and once it’s part of the cabinet confidence documentation, it is sealed by the rules for 30 years in the national archives.
Ms. Gould: In 30 years, you can check and see.
Senator Frum: In the example that Senator Carignan raised earlier about correspondence between, let’s say, Minister Brison and Mr. Irving, would that potentially fall under cabinet confidence?
Ms. Gould: That would be covered, as I’ve said already and as you well know, by the Lobbying Act. If there is an individual or a company that is lobbying the government, they must register with the lobbying commissioner and they must disclose that information.
The Chair: Senator, you are on the right track.
Senator Frum: We have covered this ground, but the documents themselves, potentially, the lobbying itself or the contact could be registered, but the documents themselves could fall under cabinet confidence, or are in fact.
[Translation]
Senator Carignan: It’s lobbying if an Irving representative tries to influence Minister Brison, but it’s not lobbying if the minister contacts Irving.
[English]
Ms. Gould: For the record, I think it’s important to note that you’re using conjecture.
[Translation]
Senator Carignan: I don’t understand why you’re using that loophole.
[English]
Ms. Gould: I think it’s important to read into the record that these are your opinions as opposed to anything based on fact —
[Translation]
Senator Carignan: I take responsibility for my opinion; we can put it on the record. I have no problem with that.
[English]
Ms. Gould: I think it’s important to note that you’re making —
Senator Lankin: I didn’t get the translation.
Senator Carignan: That’s not a lobby if the minister writes a letter.
The Chair: The contact is initiated by the minister, not initiated by somebody who has a private interest to promote.
[Translation]
Senator Carignan: So it’s not lobbying in a situation such as that.
Senator Boisvenu: As regards the transparency you want to bring to ministers’ offices, when a senior official drafts a memo to the minister, that memo may be admissible, but it won’t be admissible when a member of the minister’s office writes a memo for another minister or for outside. Can you explain to me where the transparency is there?
Ms. Gould: The public service has an obligation to Canadians to be transparent in the advice it gives to the minister’s office, and that’s how the Canadian government operates in the Westminster parliamentary system. We, as politicians, receive advice.
Senator Boisvenu: Why wouldn’t the memo drafted by your employee be available for citizens, when it would be if it came from a deputy minister? I’m trying to understand your definition of transparency.
Ms. Gould: In our system of government, we, as politicians, receive advice from officials, and we make decisions based on opinions and information that we receive from them. It’s important to have access to information in making decisions. We make a decision based on the information we receive.
Senator Boisvenu: Then why is information that comes from an official admissible under the act, but you make it unavailable if it comes from a cabinet member? I understand your answer, but why is it available in one case and concealed by you in another?
Ms. Gould: It’s important to have the room to make decisions and to reflect on the information received.
Senator Carignan: The coming into force clause provides that a number of sections won’t come into force until the first anniversary of the act, which means one year after it has received royal assent, including section 16 and sections 19 to 21, which is the section covering orders of the Information Commissioner. In theory, that takes us up to a year from now, to fall 2019. Consequently, even if the bill received royal assent immediately, your government would never be subject to this entire section of the act respecting orders. Why wait a year to allow the commissioner to make orders?
Ms. Gould: It’s to give us space so we have the necessary infrastructure to respond. As you said, that will be a year from now, but we introduced this bill in the House of Commons two years ago. We didn’t know it would take this long. We want to ensure everything’s ready for implementation.
Senator Carignan: With regard to cabinet documents, you intend to facilitate access to briefing notes from officials when they come and testify here, for example. You want to make briefing notes accessible when you take on the role of minister. Why not provide access to the notes you receive as cabinet members when decisions are made in cabinet? I sat in cabinet. I know perfectly well there’s a lot of information concerning briefing notes, support, the positions of the parties and the positions of organizations. That information subsequently helps you make decisions. I’m not asking you for access to the discussions ministers have when they make decisions, but let’s at least have the briefing papers and status of the situation in cabinet. I don’t think that information should fall under cabinet secrecy. Why not make it accessible?
Ms. Gould: Those documents are part of cabinet.
Senator Carignan: They can be excerpted.
Ms. Gould: They’re cabinet documents.
Senator Carignan: They can be edited.
Ms. Gould: We could further facilitate access to information. That could be part of a second phase of this process. There’s a lot of information that we could share with Canadian citizens, but we have to change attitudes, and that will take time. It’s good to make information accessible, but citizens must know where to find it and how to use it. That doesn’t necessarily make the information more accessible. There’s a lot of government information. We should consider a comprehensive system that would make information readily accessible.
[English]
Senator Lankin: This is a follow-up to Senator Carignan’s question about the one-year delay of coming into force of some of the provisions. We heard yesterday from the Information Commissioner that their office was concerned that for some of those provisions, it will require them to have two parallel systems up and running while they are developing and implementing investigations based on the new provisions that are enacted. Some of the delay will mean they have to use the old system. I’m not familiar enough with the details of that to tell you what the import is, but I would certainly ask that you take a look at her comments yesterday and discuss that with your colleagues. If it causes a duplication of effort and a differential approach that has to be implemented at the same time, it could certainly cause more backlog than what we have already. They are in the process of trying to clear backlog and then they are in the process. There has been money provided for five years for the implementation, but there is a lot to be done with that. I would ask you to look at her remarks.
Ms. Gould: Certainly, and I will, and I’ll speak with my colleagues about that. One of the things I would caution or expect is that while there is a delay, they will continue to operate under the old system, so they will have to continue to do that. But at some point, they will also have to build up for the new system. So I’m not sure if there wasn’t a delay that they would be ready right away.
Senator Lankin: I think we are both talking theoretically. I don’t have enough information about how that office operates, but the head of that operation has raised this as an issue of concern, so I’ll leave it with you to look at. Thank you.
The Chair: Thank you, Madam Minister. I would like to ask you, on behalf of my colleagues around the table, if you could have a word with the Minister of Justice to convince her that it is important that we hear her, especially in relation to Part 2 of the bill that refers to the information related to the judges, and, of course, section 36 of the bill in relation to the nature of the order that the commissioner would be now invited to issue. That would be very helpful for the members around this table. We trust you with that mission.
Ms. Gould: Certainly.
The Chair: We would be happy to welcome you again on Bill C-76. You started your opening remarks with that, so I will conclude on that as well.
Ms. Gould: I look forward to returning. Thank you very much.
The Chair: Thank you, minister.
[Translation]
Honourable senators, we are continuing our meeting on Bill C-58. Mr. Therrien, I am very pleased to welcome you this morning, as well as your associates, Ms. Lajoie and Ms. Barss.
You are familiar with our procedure. I imagine you also had a chance to hear and consider the testimony of your colleague, the Information Commissioner, yesterday evening. References were made to the joint letter you signed in March that we heard about during our discussion last night. However, I now turn the floor over to you so we can begin this exchange of views this morning.
Daniel Therrien, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Mr. Chair, honourable senators, good morning. I would like to thank the committee for the invitation today to discuss Bill C-58. As Senator Joyal, explained, with me are Julia Barss, General Counsel and Head of Legal Services, and Sue Lajoie, Executive Director, Privacy Act Compliance Directorate.
I am pleased that the government is taking concrete steps to modernize the Access to Information Act. Transparency and openness are fundamental to preserving a healthy democratic system. Nonetheless, as I indicated before the house ETHI Committee when I appeared last fall, I am concerned about Bill C-58, in its current form. As drafted, the bill disrupts the current balance between access and privacy.
As you know, and as the chair suggested, the Information Commissioner and I have written to the government to recommend changes to strike a better balance and Minister Brison has indicated a willingness to positively consider these changes, or he at least encourages you to do so.
Let me explain briefly why I think these amendments are necessary. The Access to Information Act and the Privacy Act have long been considered by the Supreme Court to be a “seamless code” of informational rights, the combined purpose of which is to carefully balance both privacy and access.
Part of the balance lies with the fact that the Commissioners have equal powers. Minister Brison confirmed in his appearance before you that this balance will be disrupted. He characterized Bill C-58 as a “game changer” in giving order making powers to the Information Commissioner,changing their status from ombudsman to an authority with teeth.
[English]
He characterized Bill C-58 as a game changer in giving order-making powers to the Information Commissioner, changing her status from ombudsman or advocate to an authority, in his words, “with teeth.”
[Translation]
But by granting order-making powers to the Information Commissioner, including in respect ofpersonal information, Bill C-58 risks giving access pre-eminence over privacy. We’re talking about the bill in its present form. I appreciate that Bill C-58 provides for formal notification of the Privacy Commissioner and legalrecourse in the case of formal OIC orders to disclose personal information.
However, I think thisattempt to balance access and privacy falls short because privacy can also be impacted outsideof formal orders.
[English]
For instance, the Information Commissioner can recommend that personal information be disclosed without an order or an institution can decide to disclose personal information to avoid an OIC order. In such cases, I would not be notified or given the opportunity to intervene, even though the OIC and OPC may diverge on key legal issues relating to the balance between access and privacy.
There are three types of legal questions where the two offices may have different perspectives. First, does the information at issue constitute personal information? It seems simple enough: Is it personal information? When a name is associated with information, it’s very simple. But in 2018, when data banks can be merged, even though information is not associated with a name nominally, it can still remain personal information because of data-matching practices.
The second issue is, is the information publicly available, and the third type of issue where we may diverge is, does the public interest clearly outweigh any privacy invasion? It’s not surprising that we may diverge. The Access to Information Commissioner is an access to information champion. I’m the privacy champion. We may disagree on the right balance between the two.
While the Information Commissioner is the champion for access, my office has the central role, quoting from the Supreme Court, “for upholding the privacy rights of Canadians.” It’s especially important that this role be recognized as such given the federal government’s stated commitment to increasing transparency, openness and accountability through the Open Government initiative. I think Minister Gould spoke to that initiative, which is an excellent initiative, a few minutes ago. Social licence and acceptance of this worthy policy, Open Government, will rest on the confidence of citizens that their privacy will not be unduly impacted, which leads me to the solutions in our joint letter.
The Information Commissioner and I agree that my office should be consulted when both privacy and access are at play and not only where orders are to be made. I understand you have a copy of the letter that we both sent to Minister Brison outlining our joint proposals. The proposals, which Minister Brison expressed support for when he appeared before you, are aimed at ensuring that my office is engaged in an appropriate and timely manner while, at the same time, avoiding unnecessary delays in providing access under the ATIA regime.
First, there should be a mandatory requirement, not a discretionary requirement, for the Information Commissioner to consult me whenever she intends to make an order to disclose information that has been exempted under the personal information exemption, section 19 of the Access to Information Act.
Second, the Information Commissioner should have a discretionary ability to consult me at any stage of her investigation in circumstances that she deems necessary or advisable. To ensure that these consultations would not be too numerous or cause undue delay, Ms. Maynard and I have agreed that a memorandum of understanding between the two offices would define specific privacy-related issues or circumstances for which consultations should take place.
Finally, the Information Commissioner should be required to provide me with a final report of the results of any investigation where I was consulted and where we are in disagreement regarding the application of section 19. In other words, if there is a conflict, if there is a difference of opinion on whether personal information should be protected between the access champion and the privacy champion, I should have the opportunity to seek judicial review so that the court would arbitrate this difference of opinion.
In my view, the best way to ensure a balance between access to information and privacy rights would be to grant me order-making powers, as my colleague will have. Again, the Supreme Court finds that the two acts currently are a seamless code, and one of the elements of a seamless code is that the two commissioners have equal status and powers. By granting one power and not the other, that balance is disturbed. I am not opposed, of course, to the Information Commissioner having order-making powers. I’m saying this has an impact on the balance recognized by the Supreme Court between two quasi-constitutional rights. However, in the absence of equal powers, the solutions we have jointly proposed represent a step towards maintaining the balance.
I would respectfully urge you to consider these proposals. Thank you for your attention, and I look forward to your questions.
The Chair: Thank you, Mr. Therrien. You raised an important issue that the committee will certainly want to question you about so we can eventually come to some kind of consensus about the recommendation you made.
[Translation]
Senator Boisvenu: Welcome to you, Mr. Therrien, and to your associates, Ms. Barss and Ms. Lajoie as well. Were you consulted on the drafting of Bill C-58?
Mr. Therrien: No.
Senator Boisvenu: That’s a clear answer. Second, you referred to a potential imbalance. I would like you to tell us more about the potential imbalance between privacy and access to information and to give me an example of where that imbalance might affect the Privacy Act.
Mr. Therrien: I’ll start with the example and then go on to more general considerations.
The example is the one I mentioned in my preliminary remarks. In the modern technological world, it’s not that easy to determine whether information is personal. One of the provisions of the Access to Information Act states that, notwithstanding the general right to access to information the government holds, if the information is personal information, that right is excluded. Thus, no person other than the person concerned by the information in question has any right to it. However, that information must be personal. The principle seems to be a simple one, and it may have been simple in 1983, when both acts were passed. If a name is associated with certain information, such as a person’s opinion, address or bank account, that information is personal. In 2018, even if the information is not associated with a name, if it is disclosed, there is a risk, which may be quantified with the assistance of technology experts, that the seemingly anonymous information is in fact personal. The Information Commissioner and I may disagree over what level of acceptable risk of re-identification determines whether the seemingly anonymous information is, in our opinion, not anonymous but rather personal.
I’ll put that situation in an open government context because the act provides especially for the formal mechanism of access under the Access to Information Act. The open government policy is a very important contextual element, in my view. The present government advocates an open government policy. It’s consistent with a desire to be transparent, which ensures better democracy, and that’s excellent. However, you have to pay attention in implementing this policy not to make personal information available to the public because citizens are entitled to protection of the confidentiality of information that the government possesses concerning them.
If, in implementing the open government policy, a department decides that it has an information base and thinks it would be a good idea, from a transparency standpoint, to communicate that information base to the public so that people who conduct research, or whatever, can use that information, that’s very good. Is there any information that is seemingly anonymous but can be re-identified? What interpretation of the expression “personal information” will be made by a department that asks itself that question? Is it the interpretation that the Information Commissioner states in a recommendation made to a department? In the current state of Bill C-58, I can’t look at it, be consulted or give my opinion on the subject. I don’t think that’s an optimal result.
Senator Boisvenu: In your report — and I think this is an important point, as Senator Joyal indicated — you request the same power to make orders as the Information Commissioner.
Mr. Therrien: I would’ve liked to have it. I see that the bill before you doesn’t have that scope. One of the factors in the present balance is the fact that the two commissioners have the same powers. That’s what the Supreme Court says.
If we could go back three years, I would have liked the reforms to be introduced together. I see that Bill C-58 concerns only the Access to Information Act. Unless I’m mistaken, I don’t believe the scope of the bill allows you to grant me authority to make orders.
Senator Boisvenu: That’s not my question. In the Information Commissioner’s case, I can understand that she can issue an order because she’s asking the department to do something. How would an order apply in your case? Would you tell the department it can’t do a particular thing?
Mr. Therrien: Do you mean in a privacy matter?
Senator Boisvenu: Yes. How would you in enforce an order?
Mr. Therrien: I don’t think the problem would arise if there were a conflict between the two commissioners over privacy. Perhaps Ms. Barss could add something on that point.
Julia Barss, General Counsel and Head of Legal Services, Office of the Privacy Commissioner of Canada: You can imagine a case in which people have filed a request with a department to obtain personal information. If they don’t get all the information they seek, they often send us complaints. There may be exemptions, relating to solicitor-client privilege or commercial privilege, for example, that the departments may invoke in respect of a portion of the documents.
Senator Boisvenu: I thought it was the Information Commissioner’s job to determine the nature of that kind of request.
Mr. Therrien: The Privacy Act contains provisions that are very analogous to those in the Access to Information Act. The act provides that citizens are entitled to non-personal information that the government holds. In that respect, Ms. Maynard has certain powers, and, if the bill is adopted, they will include the power to make orders. The Privacy Act, which we are currently discussing, contains provisions that limit the disclosure of information. There is also an equivalent in the Access to Information act respecting citizens’ access to their own information. We should be able to order access in these situations in which individuals request and are denied access.
Senator Boisvenu: That’s very clear. Thank you very much, Mr. Therrien.
Senator McIntyre: You’re obviously a very busy commissioner, Mr. Therrien. This is the second time this week that I have had the pleasure of asking you questions in committee.
Mr. Therrien: I’m pleased to be here.
Senator McIntyre: As you know, clauses 47 to 57 of the bill amend the Privacy Act. For example, clause 57 amends subsection 77(2) of the Privacy Act. That subsection concerns amendments to the schedule containing the list of federal institutions to which the act applies.
Do you agree with this change?
Mr. Therrien: Let me see the provision in question. It’s on what page of the bill? Are you talking about the schedule?
Senator McIntyre: For example, the new subsection 77(2) provides that the Governor-in-Council may, by order, add to the schedule the name of any department,ministry of state, body or office of the Government of Canada.
Mr. Therrien: I’m going to rely on the reading you just gave. Generally speaking, I would say it’s important that the number of federal institutions subject to the Access to Information Act and the Privacy Act be as large as possible to ensure respect for citizens’ rights. I don’t have a problem with the idea of a government being able, by order, to add to the list of institutions. I would consider this a problem if it could remove names from the list of institutions in the schedule. However, we haven’t taken a close look at this question. We could get back to you on it, if you wish.
Senator McIntyre: Yes, please.
Mr. Therrien: Generally speaking, adding is a good thing; removing names of institutions could be a problem.
Senator McIntyre: Yes, because I think subsection 72(2) of the bill is very clear on that point. That’s very good; you can get back to us on the matter.
Mr. Therrien: I’m going to speculate, but department X in 2018 could be called Y in 2019; that’s a situation that wouldn’t be much of a problem. However, removing a certain department, by order, from the purview of the Privacy Act would obviously be a problem.
Senator McIntyre: Ms. Legault, the former Information Commissioner, recommended that the Access to Information Act include a provision making the mediation process official. What’s your opinion on that recommendation?
Mr. Therrien: I think that would be desirable. Is it necessary? Perhaps not. I’m going to talk about our institution. At our institution, when we have an obligation to investigate complaints submitted to us, we don’t deal with all complaints in the same way. We have different processes that are more or less elaborate depending on the complexity of the issues put to us. In some simple cases, we have what we call a quick resolution process that may be likened to mediation. As an administrative tribunal, we have a certain amount of latitude to adopt various procedures in order to proceed more or less quickly. I think that having the authority to engage in express mediation would codify current administrative procedures. I have no objection to that, but I’m not absolutely sure it’s necessary.
Senator McIntyre: I agree with you and Ms. Legault because many complaints are resolved through negotiation and also by consensus.
Mr. Therrien: Yes.
Senator Carignan: Good morning, commissioner.
You and Ms. Maynard wrote a joint letter to Minister Brison on March 20, 2018 to inform him of your position.
Mr. Therrien: Yes.
Senator Carignan: At the end, you write, and I quote:
We would be pleased to discuss this matter further at your convenience. If your staff requiresfurther information, please do not hesitate to contact Julia Barss. . .
— who is here among our witnesses.
Did the minister contact you? What was the nature of the exchange?
Were any documents exchanged between Minister Brison’s office and you or your office?
Mr. Therrien: Yes, there was a follow-up and a number of communications with Mr. Brison and his office in which we initially perceived a general openness and then, in the end, essentially an agreement in principle with the recommendations that we jointly made.
Senator Carignan: Were there any documents pertaining to that?
Mr. Therrien: No, we had telephone conversations.
Senator Carignan: Were any notes taken?
Ms. Barss: Perhaps only informal notes by the people who took part in the telephone conversations, for example.
Mr. Therrien: We can check our files to see whether we can find anything.
Senator Carignan: May we have the notes?
Mr. Therrien: Yes.
The Chair: No letters were sent to Minister Brison after those conversations confirming the essential points of the agreement you had reached?
Mr. Therrien: No, it was done orally.
[English]
Senator Lankin: Thank you for being here, all three of you. We appreciate it. I appreciate the opportunity to explore an issue with you that’s more background.
Before leaving Senator Carignan’s questions, there was a public statement by the minister that he is open to these reforms, so that has been essentially made official by a public declaration.
Mr. Therrien: When he appeared here, yes.
Senator Lankin: Thank you.
This is a background question, and it betrays my lack of knowledge of how your office operates. It’s with respect to the second scenario you gave, where the two offices may have different perspectives on whether the information is publicly available. It’s important that there be a common understanding of what “publicly available” means. I would think, in some way, your office would probably have taken the lead in terms of developing a consistent approach to determining that.
If we step back, that phrase “publicly available” is at play in a number of different parts of government. It’s certainly at play with respect to protecting Canadians rights and the balance between investigative powers of security organizations, for example — so the Communications Security Establishment or CSIS — and the issue of what’s publicly available. With the advancements in digital record-keeping, databases, data mining and all of that in the new cyber world, this becomes an issue for which we have to have a common understanding of its meaning.
What is the state of understanding? Are there court rulings that speak to and elaborate upon what “publicly available” is? Is that something that has been further advanced within government? Does your office work across other organizations? Is there a whole-of-government view of “publicly available”?
Mr. Therrien: The short answer is no, there is no whole-of-government view. This is an excellent question. There is no whole-of-government view, and it’s a complicated matter.
Context matters. You mentioned as one of the contexts investigative powers by government. Let’s imagine the Canada Revenue Agency is interested in collecting and using information from social media — information on public profiles of individuals in social media — and using that information for investigative purposes, such as investigating tax fraud. At one level, this is publicly available information, certainly, at a given point in time, because the individual has chosen — in an informed way or not, it’s not clear — to put that information in the public realm. But it remains personal information, so it is both publicly available and personal information such that the federal institution in question can only collect, use and share it under section 4 of the Privacy Act if the information is relevant to its mandate. In the example I’ve given, it’s conceivable that it would be relevant to the mandate of the Canada Revenue Agency.
My point is that the law is very unclear about the line between what is publicly available and what is personal information. There are many contexts. Because the law is unclear, it is very possible that the Information Commissioner and I would disagree in a given case. Probably, I accept the responsibility for trying to clarify the law on this point and issuing guidance. We have not done so, but we will. But on a case-by-case basis, it makes it necessary that the two commissioners discuss when the law is unclear.
The sum total of my recommendations is to ensure that, in these difficult areas where the law has not caught up to technological change, there’s an opportunity for me to be consulted before information that could be detrimental to the privacy of an individual is actually released.
Senator Lankin: I appreciate that.
Senator Gold may be able to correct me, but I believe those words, “information that’s publicly available,” are contained within Bill C-59.
Mr. Therrien: Yes.
Senator Lankin: As we have two bills that concern the particular breadth of understanding of what that means, is there currently discussion or work or anything going on that would help those other organizations who are going to develop an opinion about what is publicly available?
In both these situations, I’m talking about the balance between, in your case, the access to information and protection of personal information of privacy and, in the other case, important work on counterterrorism, let’s say and the importance of personal privacy and the rights of Canadians as well. These are all balancing acts, and I understand your point about context, but as we have two bills coming before us right now that contain the same words, I’d like to have a sense of what kind of commonality of understanding there is about this or not.
Mr. Therrien: I’m not sure I can reassure you. Context does matter. In the context of Bill C-59, the national security legislation, there was quite a bit of discussion around what “publicly available” means and to what extent can national security agencies rely on the publicly available nature of the information to use it. With the bill as it is, I think we have reached a reasonable compromise in that context.
The issue is also relevant for access to information and privacy acts, which are, of course, the laws of general application on these matters. The issue is also relevant for the purpose of the private sector privacy legislation, PIPEDA, where companies can use publicly available information currently in extremely limited circumstances, and they’re interested in broadening the definition of “publicly available information” in that context.
Yes, the definition should not be wildly different, depending on context, but we need to look carefully at context to get to the right point.
Are there discussions? I can’t really reassure you. We’ve made recommendations that the government can look at this in the context of PIPEDA, for instance. We’ve been engaged in the discussion, obviously, on this issue in the context of Bill C-59. Here, in the context of Bill C-58 and the Privacy Act, you’re free to do what you will want to do.
A useful way forward would be what you have suggested, and what we have given some thought to, which is, as an office, to try to give some general guidance on the issue. As Senator McIntyre said, we’re slightly busy; so, unfortunately, it’s on our radar, but we have not gotten to that important issue yet.
Senator Lankin: Thank you.
[Translation]
Senator Dalphond: Thank you for coming this morning, commissioner. You’ve been in your position for a few years. You understand how the institutions operate. How does it work from a technical standpoint if you have a problem or a disagreement with the Information Commissioner in the present system, before the system is introduced under which she may be given the power to make orders?
Mr. Therrien: In the present system, there is little interaction in individual cases because Ms. Maynard and I, individually, under our two respective acts, have an obligation of confidentiality toward the complainant when we examine a complaint. Consequently, if Ms. Maynard examines a complaint that involves section 19 of the act, concerning the question whether information should be disclosed if it is personal information, the Information Commissioner is subject to an obligation of confidentiality. As a result, she may not consult me on those matters. That may seem strange, but that is the current state of affairs. We don’t interact on specific files. It’s more from the standpoint of general policies. Both of us are members of a group of federal-provincial commissioners of access to information and privacy. Consequently, we have discussions on general trends, but those discussions don’t concern specific cases.
Senator Dalphond: I have a supplementary question. Am I right in thinking that the same person administers both statutes in certain provinces?
Mr. Therrien: Yes, absolutely. That’s generally the case in most provinces.
Senator Dalphond: That’s because of this separation or these two heads — the Supreme Court calls at the “seamless code” — but the principles are integrated, but the two heads aren’t.
Mr. Therrien: You can put it that way. That’s why, in our recommendations, Ms. Maynard and I have arranged that, when she investigates complaints involving the notion of personal information, she may consult me despite the general obligation of confidentiality.
Senator Dalphond: Under the new act, the Information Commissioner will have the authority to make decisions that, in principle are binding on the department or organization concerned. So that means you won’t be part of that.
Mr. Therrien: No.
Senator Dalphond: And that, even if the decision that has rendered is unfounded and results in the disclosure of personal information, you can do nothing because the information has already been communicated.
Mr. Therrien: Yes. That’s under the current version of the bill. My objective in all the recommendations I make jointly with Ms. Maynard is to avoid that situation. There has to be a consultation in order to avoid that disagreement. If there is a disagreement, she must inform me of it so I can request a judicial review and a neutral arbitrator can decide the matter.
Senator Dalphond: In the system being proposed, you talk to each other and, if you don’t agree, she nevertheless makes an order, and you go to Federal Court to request that it be quashed.
Mr. Therrien: If I’m informed. I won’t necessarily be informed.
Senator Dalphond: But if you’ve been consulted?
Mr. Therrien: If I’ve been consulted, yes.
Senator Dalphond: I see. Thank you.
The Chair: It’s the court, in the last resort, that would resolve the dispute that you might have on the way the nature of the information in question should be interpreted.
Mr. Therrien: In accordance with the recommendations concerning the proposed amendments, yes.
The Chair: I see, but under the current act?
Mr. Therrien: Under the current act, there is a remedy solely where orders have been made.
Ms. Barss: Yes, that’s correct.
Mr. Therrien: You’ve heard that orders will be made in very rare cases. In those cases, if I disagree, I can request a judicial review, but that, in my opinion, is for a very small number of cases in which personal information might theoretically have been disclosed erroneously.
The Chair: Good.
Senator Pratte: In the same vein, the Information Commissioner has requested the power to make orders, but that they be certified by the Federal Court. Consequently, these would be orders with teeth. With regard to the joint recommendations you have made — and this is a matter that concerns our committee — if the bill were amended and adopted so that the Information Commissioner’s orders could be certified, would that change matters for you? Are the compromises you suggest with the Information Commissioner still as valid?
Mr. Therrien: I think that still works. I take it for granted that the certification issue will come into play following a judicial review. If I disagree with her on an order that is hypothetically not yet certified, I could request a judicial review, and the court would decide. In that case, we would not need certification since the court would have decided.
Senator Pratte: It intervenes before certification.
Mr. Therrien: Before certification.
Senator Pratte: I see. Thank you.
Senator Carignan: Senator Dalphond’s question makes me think about your role. Wouldn’t it be desirable for the two commissioner positions to be merged? I don’t want to make you lose your job. You could apply for the position in any case. Perhaps the balance between the right to public information and the right to privacy should be managed by the same brain. I imagine the decisions would be much more rational.
Mr. Therrien: That’s definitely an option. In several provinces, it’s more than an option; it’s the reality. One of the benefits of the model under which one commissioner is responsible for both access and privacy is that these arbitrations are done internally before the courts need to intervene. It’s theoretically more economical. There are all kinds of advantages to that. However, that’s not the regime we have at the federal level, and I’m not opposed, in principle, to a potential merger.
Over the years, many minds have wondered whether that was desirable, including a Supreme Court justice who was retired when the report was written, Justice La Forest. The government expressly asked him to examine this question, and Justice La Forest concluded that, at that time at least, it was not a good idea for various reasons.
On the one hand, he thought it was desirable that there be two champions. Two causes could potentially be in opposition, he thought, and it was a good thing for there to be a champion for each cause so that there would be ombudsmen, champions of a cause. He thought it desirable that there be a champion for each cause. I would add one point, and I don’t know whether Justice La Forest referred to it, but, in my opinion, in view of the extent of technological changes in 2018, the workload involved is an issue. Privacy and therefore the Privacy Act, in government and the private sector, entail a heavy and complex workload. Changes occur every day.
Some thought should be given to it, and I ultimately don’t have an answer to give you; I can only cite the relevant factors: is it a good thing for the same person at the federal level, where the volume of work is not the same as at the provincial level, with all due respect, to be responsible for privacy in both government and the private sector and access to information for the federal government? It can all be done with adequate funding; that may be a desirable situation or model, but I’m giving you the factors. I’m not opposed to it; I don’t have a definitive answer to give you at this time. Those are what I consider the relevant factors.
Senator Boisvenu: Mr. Therrien, I’m asking you for advice: would it be a good idea to invite the commissioners of certain provinces to appear as witnesses at our committee’s hearings on Bill C-58, perhaps those of the most populous provinces, to see how they administer this dual mandate of access to information and privacy?
Mr. Therrien: Yes, they would definitely have things to tell you from practical experience.
Senator Boisvenu: Thank you.
Senator Gold: My question will undoubtedly betray the extent of my ignorance of the regime as it’s applied.
[English]
With regard to disclosures of personal information under the current act, the Access to Information Act, the act, in subsection 19.2, incorporates provisions of the Privacy Act, including the ability to release personal information if it’s in the public interest. My ignorance may now betray me here, but in such a case, how would the individual whose personal information was disclosed in the public interest know about that? Am I right in thinking there’s no duty to inform that person?
[Translation]
If that’s the case, isn’t that a deficiency in the act as regards ensuring the individual is informed, or do I misunderstand the way the act is administered?
Sue Lajoie, Executive Director, Privacy Act Compliance Directorate, Office of the Privacy Commissioner of Canada: There is no obligation on the institution’s part to inform the individual that it intends to disclose that individual’s personal information. It may do so, but it has no obligation. However, if a disclosure is made in the public interest, the Access to Information Act refers to the Privacy Act. Paragraph 8(2)(m) provides that the organization may choose to disclose personal information, and may do so at its discretion, but subsection 8(5) of the Privacy Act also requires the institution to disclose the information and communicate to our office its intent to disclose that information. Consequently, in this situation, despite the fact that the individual is not informed, our office should be informed. That sometimes happens after the fact. The institution is supposed to do so in advance or as soon as possible upon the disclosure.
Senator Gold: You think that’s sufficient to protect the privacy of Canadians?
Mr. Therrien: That’s a good question. I think that the choice Parliament made at the time was to apply the public interest test. The department in question is in a good position to decide whether it’s in the public interest to disclose the information. To a certain degree, the courts defer to the department in the application of all that. You’re asking whether the individual concerned should be informed: definitely, in certain cases. But in all cases? We should think about that.
Ms. Lajoie says the government must inform us, if not before the fact, then shortly thereafter. If I’m not mistaken, we’ve recommended in some cases, but definitely not in all, that the department inform the individual, but that’s not the rule. Should it be? That question should be considered at greater length.
[English]
Senator Batters: First of all, it dawned on me that if those two positions were merged, Information and Privacy Commissioners, then they would have to change that provision that said that they couldn’t consult with each other. It could get a little confusing.
I wanted to say that, in Saskatchewan, we do have the two merged and have had for a long time. When I was in private practice in Saskatchewan, Gerald Gerrand, the senior counsel at my law firm, was the Saskatchewan Information and Privacy Commissioner, and I worked with him on many of those files. I think having the experience of a jurisdiction that has had that for quite some time would be very helpful. Thank you very much.
[Translation]
The Chair: Mr. Therrien, thank you for being available to take part in our proceedings this morning. Your thoughts and proposals will definitely be very useful in our consideration of Bill C-58. Should you feel you need to bring anything else to our attention, please do not hesitate to do so.
Honourable senators, I would ask you to remain in the room for a minute after our witness leaves.
[English]
There is an organizational decision to be taken. I would like, of course, to have your concurrence. As you know, next Thursday, there is the joint address of the Prime Minister of the Netherlands in the House of Commons. Senators are also invited because it’s a joint address. The question for you and me to resolve is whether we hold a meeting at that same time. In other words, would senators make themselves available to participate, or would they prefer that the meeting didn’t take place and we have no session next Thursday?
Senator Batters: Do we have any indication if the Minister of Justice might be here next Thursday? I would be of the position that —
The Chair: She has not confirmed at this stage that she would be available on the 25th.
Senator Batters: If it’s not her, I don’t think we should have a meeting. I don’t think that we, frankly, should have any more meetings on this until we finally get the Minister of Justice.
The Chair: As you saw in my intervention this morning, with the clerk of the committee, we’re doing our best to make sure we hear the Minister of Justice on the very important issues that are at stake.
On the other hand, on that very specific issue, as you saw, I have introduced a motion in the chamber so that we have the opportunity to sit in camera to hear some witnesses related to those sections of the bill that are under the responsibility of the Minister of Justice. I think it will be helpful to have those meetings in camera with those witnesses because, when we have the minister, we would be much better equipped with information that could be shared with senators on those occasions. But I have certainly not discarded the importance of hearing the Minister of Justice, having that information made available to honourable senators.
My question remains: Do you think we should hold the meeting next week, on October 25, or not?
[Translation]
Senator Boisvenu: Most of the members have expressed an interest in attending the activity organized for the visit of the Belgian Prime Minister. We therefore suggest that we not hold the Wednesday meeting.
As for Thursday, there is a principle that has been advocated in the steering committee: as long as the minister is not present, we do not hold a meeting. There is a component to date that concerns the Minister of Justice. We must insist that she be here next Thursday; otherwise I will propose to the steering committee that we not hold a meeting next Thursday.
[English]
The Chair: As I said, the two are separate issues in my mind. The question is if we should allow the senators or members of this committee the capacity to attend the joint session of Parliament when the Parliament is invited to listen to the speech of the Prime Minister of the Netherlands. That’s essentially the issue.
The other issue is separate in my mind. I am proposing that today I will try to move the motion under my name, on behalf of the committee, so we can sit in camera to hear further witnesses, and those witnesses are essentially linked to the mandate of the Minister of Justice. In my humble opinion, I think it would be very helpful for senators to listen to the contributions that those witnesses will provide to us in understanding the implications of those sections of the bill that deal with the system of justice before we question the minister.
As I have heard around the table, we might want to consider some amendments. Before we consider that, it’s essential to give the opportunity to those witnesses to be heard. Then we could have a discussion with the Minister of Justice in relation to what we have heard. We will be much better equipped. Otherwise, we will receive the testimony of the Minister of Justice not holding all the information needed, in my opinion.
That’s why I suggest that we don’t suspend the session of this committee until we hear the Minister of Justice. I thought the other way around; we should accumulate the information so that when we are in a position to have all that at hand, it will be more fruitful to listen to the Minister of Justice. That is a question that could be dealt with separately from the first one.
Senator Batters: Could we have that in camera meeting on the Wednesday?
The Chair: It depends on whether the witnesses will be available. We have the Canadian Bar Association confirmed for Wednesday. We don’t have confirmation from the other witnesses because I didn’t get the authorization yet of the Senate to hold those meetings in camera.
Senator Batters: I would prefer to hear from the minister before the Canadian Bar Association.
The Chair: I cannot compel the minister. I do everything I can, and you see that I come back on it. We will have the opportunity, if the Senate agrees, to hold in camera meetings, and then we are on the path of saying to the Minister of Justice, “Listen, we have had the opportunity to hear those witnesses,” who are, of course, very responsible persons. In that context, we will be in a position to then have the point of view of the Minister of Justice in relation to that testimony, but also to other sections of the bill, as we said yesterday and today, in relation to the certification of order and so forth. There are other issues that pertain to the Minister of Justice.
Senator Gold: I agree with you, chair, that they are separate issues, so let me speak to both of them.
On the latter point, I strongly support us moving ahead with the study of this bill, and we have a lot on our plate. We’ll have even more to come on our plate. I think moving forward is important, and the rationale that you have given is the right one whether it’s Wednesday and/or Thursday. It is on that issue.
Vis-à-vis the joint address, I’m agnostic, frankly. I wasn’t planning to attend, but might I suggest that people could find substitutes if that’s appropriate. I yield to the majority here. I would prefer to meet because I think we have work to do, but —
The Chair: I’m very frank and open, and I would not like to have a committee with witnesses who take it upon themselves to come, they prepare a brief, they brief themselves, they take that professional time — I’m not talking about civil servants; I’m talking about outsiders — and they come here and there is only a small number of senators. It’s not proper.
Senator Gold: I agree with you.
The Chair: That’s essentially my preoccupation.
[Translation]
Senator Dalphond: On the same point as Senator Gold, if our colleagues wish to attend a joint session of the two chambers, we must distinguish between the two situations. I would like not to sit in that case because this is a very technical matter. We see it in the questions that are asked. We are learning a lot. It would be good for us to continue altogether so that we have the same information. We often focus on the details. I propose that we not proceed without our colleagues.
As for the second question, perhaps we could refer it to the steering committee — to you and the two vice-chairs, Senator Boisvenu and Senator Dupuis — to discuss the witnesses you have in mind and whether it’s appropriate to proceed before or after we hear from the minister.
The Chair: We’ve already had those discussions. The evidence — pardon me.
[English]
I used the words as if I was in front of the court. I have already petitioned the Senate to allow us to sit in camera. It is because we have already planned those witnesses. I think they are very important to be heard. That view is shared equally by the two other deputy chairs. I suggest, following the suggestion of Senator Boisvenu, unless there are other points of view on the first point?
Senator Lankin: I wasn’t intending to attend the joint session and I’m fine to come here, but I defer to the wish of other senators. I think that it’s important to have some continuity as opposed to substitutions of a lot of people.
However, I’m wondering if a compromise approach might be thought of. If the Senate provides agreement to sitting in camera and you’re able to schedule those particular witnesses on the Wednesday, and/or the minister or those witnesses on Thursday, I wonder if people would be willing to attend for a meeting —
The Chair: We will try. As I say, the Minister of Justice will probably be in the chamber.
Senator Lankin: I realize that, but maybe the in camera session? But it really needs to be agreement of all of us.
The Chair: Our committee work is a work in progress, as you all realize. We learn each day that we are here. We hear another witness and we learn a different aspect of the bill. It’s a cumulative knowledge that we accumulate, if I can use those two words in the same sentence. It is important that senators remain the same around the table so that when it comes time to decide about the amendments, we share the same basis and have the same background of information to make a decision. I totally favour that.
On the other hand, you also have to understand that when we ask for witnesses outside of government administration, those people have agendas and professional commitments and we try to manage that. Sometimes they are available one day of a week but not the other week. It’s a lot of juggling, and the clerk and the committee supports that. We know at steering that they are essential witnesses we will want to hear. Those are inescapable, and we will try to manage the schedule accordingly.
I want to reassure you that we are doing the utmost to have the Minister of Justice. As you saw yesterday, I asked Mr. Brison, and I asked Ms. Gould this morning, and I spoke to the government leader. You could speak to the government leader on your own behalf. It might help to make sure that we will hear, in proper time, the Minister of Justice. We know it is essential, and we take all the possible avenues to make sure that, when the minister appears, we have all the information we need to question her.
Let me give you the example of yesterday when we heard Ms. Maynard requesting an amendment to have the order certified. Well, if we would have heard the Minister of Justice before that, there are elements of answers we need at that time to question her. I can commit myself that once you will have heard those witnesses in camera, you will be much better equipped to have a frank discussion with the Minister of Justice in relation to those sections of the bill.
That’s why I say it’s not that the Minister of Justice will use the hearing of those witnesses as a pretext not to come. We will consider where we are at once we have heard those witnesses, which I consider essential for the frank conversation we will have with the Minister of Justice. That’s my proposal to you.
Senator Lankin: I understand exactly what you said and am in agreement with your advice on this. My question was if it turns out that that in camera session could happen on the Thursday in order to move us along, would people be in agreement of attending here, or is it still an issue?
Senator McIntyre: I will not be here next week as I’m travelling with a committee. I have informed my colleagues Senators Boisvenu and Batters of this. I leave it to their discretion, whatever they decide. I have to go. I have to run to my office in Victoria Building; they are waiting for me. Whatever they decide is fine with me.
Senator Batters: I wanted to make a brief point about how we don’t have joint addresses to both houses of Parliament very often. I’ve been here five and a half years, and I can probably count the number of times on one hand that I can recall. The Senate is a house of Parliament and has important diplomatic functions, and many of our colleagues serve on a number of different committees and have many different roles. I know you don’t, chair, but I think that’s an important consideration to keep in mind. We want to always be at the forefront, as senators, of maintaining those important diplomatic relations, especially here with the Prime Minister of the Netherlands. That’s an important ally historically and otherwise. I want to give the opportunity to everyone who wanted to be here to deal with these important matters, but at the same time, especially so close to Remembrance Day, found themselves wanting to be at that particular function as well.
The Chair: Thank you. I consider that we would not sit on the occasion of the joint address. That’s my decision, with your concurrence.
On the issue of the Minister of Justice, today I will move the motion on the Order Paper. I hope that it will come to that, depending on what will happen in the house, and we’re in a position to organize the in camera meeting, and we will certainly inform the Minister of Justice that we are holding those in camera meetings so that will give her an additional element of reflection on why we want to listen to her in relation to those issues. With your concurrence, I will entertain that on your behalf.
(The committee adjourned.)