Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 50 - Evidence - October 17, 2018
OTTAWA, Wednesday, October 17, 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 4:18 p.m. to continue its consideration of this bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, welcome to the Standing Senate Committee on Legal and Constitutional Affairs. It is a privilege to have with us today Ms. Caroline Maynard, Information Commissioner of Canada. She is accompanied by two officials whom we had the pleasure of hearing from last week. Thank you for making yourselves available.
Welcome this afternoon. You’re probably well aware that we heard from the President of the Treasury Board last week, that we had a private briefing session on the functioning and operation of the act, and that some senators have spoken at second reading and expressed some concerns.
You have a background of information that will make your presentation very much listened to this afternoon.
Please go ahead, Ms. Maynard.
Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada: Ladies and gentlemen of the committee, thank you for the opportunity to appear before you today during your study of Bill C-58.
I am joined by two officials from my office, Allison Knight, Senior Director of Investigations, and Jacqueline Strandberg, Manager of Policy and Parliamentary Affairs.
Let me start by saying that I am pleased the government is taking concrete steps to modernize the Access to Information Act. While we may have different opinions as to what this modernization should look like, we should all agree that 35 years is too long to wait for a legislative update and recognize that the act has failed to keep pace with the times. The Access to Information Act is not reflective of our reality in 2018, which is the world of digital government.
I see Bill C-58 as the start of a continuous process to update the Access to Information Act, not the end. The version of the bill that we have before us today is already an improvement on the version of the bill that was initially tabled in the House of Commons and that some, including the former Information Commissioner, appropriately characterized as regressive.
Fourteen amendments that were recommended by stakeholders were made by the House of Commons. An amendment that will allow my office to publish orders and another one that requires institutions to seek written approval from the Information Commissioner before declining an access request are particularly welcome improvements.
In my view, however, further amendments are still required for Bill C-58 to represent a marked improvement from the status quo. My remarks will focus on these amendments today.
I understand my office has already provided to this committee a copy of a letter I wrote to the President of the Treasury Board with specific recommendations to improve this bill, as well as a joint letter that the Privacy Commissioner and I wrote to the President of the Treasury Board. In these two letters, you will find my four proposals to improve this bill. I hope you will consider these proposals today.
First, I recommend that the three additional mandatory requirements being added to section 6 of the act that requesters must fulfil when making an Access to Information request should be removed. Indigenous groups and access advocates have echoed this recommendation, and it is supported by the President of the Treasury Board.
In my view, these new mandatory requirements create unnecessary barriers to the right of access and could potentially prevent requests from being made.
They assume that requesters have a professional understanding of the inner workings of government, or at least prior knowledge to the record being sought. This is not always the case for many requesters.
The end result of implementing these requirements would be new limits in the right of access and a decrease in transparency.
Second, I recommend that the one-year transition period for the Information Commissioner’s new oversight powers found in the bill should be removed so that all complaints made after Bill C-58 receives royal assent would be subject to the new oversight model. Failure to implement this recommendation would create a scenario where my office would have to administer concurrent investigation systems, which I anticipate would result in unnecessary costs, complications and potential delays. The President of the Treasury Board has also supported this recommendation.
Third, I recommend that certain provisions involving the Privacy Commissioner in access investigations should be amended to appropriately balance Canadians’ rights to both privacy and timely access. The Privacy Commissioner and I jointly crafted this recommendation and we both agree it will not result in an administrative burden on either of our offices. The President of the Treasury Board has also supported this recommendation.
My final recommendation is that any order of the Information Commissioner can be certified as an order of the Federal Court.
Bill C-58 includes no mechanism for orders of the Information Commissioner to be certified as orders of the Federal Court. This means that apart from a mandamus application, where I would have to ask the Federal Court to order a government institution to take positive action, there is no recourse available in Bill C-58 to address situations where an institution simply decides not to comply with an order issued by me.
A mandamus proceeding is not a rubber-stamping exercise, but it involves a hearing and a decision being rendered by the court.
In my view, a provision in the act to certify orders of the Information Commissioner is the simplest, most efficient legislative mechanism to ensure orders are binding and would give assurances to myself and my requesters that my orders will be taken seriously.
As the Information Commissioner, it is my responsibility to ensure the appropriate application of the Access to Information Act.
With the four key amendments I have recommended to you today, I believe Bill C-58 will give me better tools and authority to ensure the right of access is respected and that government institutions are complying with the act.
I must add, however, that on its own this bill cannot address the delays that are endemic across the access system. Adequate funding, additional resources, better processes, training and technology are necessary so that the obligation of timely access can be met.
Also, if the Government of Canada wants to reassert its leadership as an open and transparent government that is a model for all democratic nations, the Access to Information Act will need further amendment.
On that note, one of the most important elements of Bill C-58, in my view, is that it mandates a review of the act within one year after Royal Assent and subsequent reviews five years thereafter. These reviews will provide stakeholders with the opportunity to take a closer look at the act and make further recommendations to improve the many other areas of the act that are left untouched by Bill C-58 but are greatly in need of updating.
For example, one would expect that during the next review the government will take a serious look at the exemptions and exclusions in the act with a renewed focus on increasing transparency, as well as the need to legislate the duty to document.
In closing, I would like to thank the members of the committee for the opportunity to present my views on Bill C-58. I will be pleased to answer any questions you might have.
The Chair: Thank you very much, Ms. Maynard. I already have a very long list of senators with questions for you.
Senator Boisvenu: Thank you for your brief, Ms. Maynard, and for your recommendations. I would like to go in a different direction from your brief.
When the minister came to meet us, I asked him about the prime minister’s election promise of greater information transparency from minister’s offices and the PMO. So information that does not jeopardize national security, of course, would be subject to the new act.
The information that will be accessible under the new act is roughly the same as under the old act. There are not a lot of changes. In your predecessor’s report in 2007, she wrote that:
. . . this change does not subject the Prime Minister’s Office to the right of access.
In her opinion, it was the status quo.
Under this act, will persons requesting information be able to gain access to more than they could under the old act?
Ms. Maynard: I agree that subjecting minister’s offices and the PMO to proactive disclosure is not the same as subjecting them to the Access to Information Act. Right now, access to information does not apply to the offices of ministers and the PMO at all. My office cannot investigate or respond to access requests made to ministers’ offices. Proactive disclosure, Part 2, adds information that Canadians have often requested, but to which they do not currently have access.
Senator Boisvenu: Can you give me some examples of information that Canadians will now be able to access that they were previously unable to?
Ms. Maynard: Everything related to expenditures by ministers and their staff is currently excluded from the act. So people who work exclusively in the minister’s office are not subject to the act at present. On the other hand, information to which departmental officials have access is subject to Part 1 of the act.
Senator Boisvenu: I see. Even the Senate has made a big step in this regard. For the past two years, the Senate has disclosed information about senators’ expenses, which is perfectly normal. I am referring to political information, though. Will the bill give citizens access to political information? I understand that the prime minister and ministers disclose their expenses made with taxpayers’ money that are administrative information. As to political information, though, will this bill require ministers and the prime minister to disclose more information than at present?
Ms. Maynard: Right now, proactive disclosure is established in a federal government policy, and even institutions, such as my office, are subject to that policy, but it is not codified in law. So, if the government were replaced tomorrow by another government, that avenue might be lost. The bill codifies it and it will be mandatory, for federal institutions and ministers’ offices alike.
Senator Boisvenu: Can you elaborate? I do not understand what you are saying. You said “codify.” What does that mean? That is jargon to me.
Ms. Maynard: It is a Treasury Board policy that requires institutions to disclose information upstream. In the future, this requirement will be stipulated in the act and it will be much more difficult to change once it is in the act.
Ministers’ offices are not subject to the same requests as financial institutions. That also includes information related to mandate letters, which are often disclosed voluntarily. Under the act, however, they will be required —
Senator Boisvenu: Will the public have access to the briefing notes on bills that public servants draft for ministers?
Ms. Maynard: Briefing notes are not on the list of documents that have to be disclosed proactively. Just the titles of briefing notes are on the list.
Senator Boisvenu: In conclusion, it will be difficult to access all political information under the bill. It is really information of an administrative nature that will be accessible.
Ms. Maynard: If the briefing notes were drafted by government institutions, which is usually the case, members of the public will be able to make a request to the office of the institution in question.
Senator Boisvenu: Thank you.
Senator McIntyre: Thank you for your presentation, Ms. Maynard. We know that the vast majority of complaints are resolved through negotiation, mediation and consensus. That said, both in the current act and in Bill C-58, no mediation function is explicitly mentioned, even though mediation is often part of the investigations. I am asking because the former Information Commissioner, Ms. Legault, had recommended including a clause to make the mediation process mandatory.
What are your thoughts on making the mediation process official?
Ms. Maynard: When I arrived at the commissioner’s office, I met with everyone at the office and asked them about processes. It seems that people at the office have no trouble conducting negotiations and mediation in the context of investigations. If there is a specific mandate, however, that is separate from the decision process, it would be possible to obtain funding, training and a specialized team. To my mind, that is part of the normal duties of an office that conducts investigations, as you just said. We do that kind of thing every day. Even though it is not spelled out in the act, that does not stop us from doing it on a daily basis.
Senator McIntyre: As to the increase in complaints and replies to requesters, we learned recently that you asked to meet all the coordinators at the institutions. You wanted to meet them to hear their thoughts and ask what problems they face. Have you had the opportunity to meet the coordinators? If so, what was the outcome of that meeting?
Ms. Maynard: I held an official meeting at the start of my mandate, and will have another one in December. Meeting the coordinators is very important to find out what is going on in the institutions and with employees at access to information offices.
From those meetings, I could see that there is still so much to do. There are huge challenges. We are seeking additional funding. I cannot work alone. In order to conduct an investigation, we have to get a reply from the institutions. The law requires us to give the institutions the opportunity to respond to access requests. In many cases, we find they do not have the necessary funds to hire more staff or, if they have the funds, they cannot find the right people. There is a huge staff shortage. It is a very challenging field.
There are also shortcomings related to technology. The processes are very outdated. Some people still “vet” their documents with a pencil. That is also a problem.
Senator McIntyre: Those are the problems that are reported most often by coordinators.
Ms. Maynard: Yes.
Senator Carignan: Thank you. I heard about a practice among certain public servants or executives whereby they put down their pencil when a sensitive matter is being discussed. They do not take notes. Treasury Board has a directive against this practice, but it seems it is not always followed. I would like to hear your thoughts on the duty to document discussions. In your opinion, shouldn’t an access to information act in 2018 — because this is 2018 — include a duty to document?
Ms. Maynard: Whether it is through the Access to Information Act or the Archives Act, the commissioners have met several times to discuss that. We have asked several times for this to be addressed in the legislation. I agree that there is a policy right now. We see this sometimes in our investigations, knowing that an institution has made an important decision. When we ask what led to a decision, what discussions were held and who took part in those meetings to come to a decision, we realize there are no documents. This does not happen as often on financial matters, where there is a rigid method because of the auditor general’s work. For comptrollers, there are very specific rules for expenditures, but as to the decisions that affect Canadians, those are political decisions. Sometimes we are missing information about the process. I am referring to decisions that are important to government and not transitory discussions.
The new applications on smart phones are worrisome. Even though people do not have a BlackBerry anymore and no longer send each other PIN messages, there are still other alternatives, such as text messages, WhatsApp or applications that public servants can use to communicate with each other without the information being recorded. We are currently in discussions with the government to see to what extent we can limit access to such applications.
Senator Carignan: When work or government matters are discussed, you are saying that public servants should be required to use a government email address or phone number and not their personal address.
Ms. Maynard: Stricter criteria would certainly be welcome.
Senator Carignan: Your predecessor also talked about Info Source disappearing. You did not mention that in your presentation. Do you have comments about Info Source disappearing?
Ms. Maynard: Info Source was related to section 6. If people have to indicate the type of documents they are looking for and the time frame, Info Source is crucial because it is one of the only places where people can find the type of information kept by institutions.
If you agree to amend section 6 and remove the new mandatory criteria, as a result of the section that requires institutions to help requesters properly determine the type of document they are looking for and the subject of their request, Info Source might not be necessary.
Senator Carignan: It will not be essential, but it could be helpful.
Ms. Maynard: It will not be essential. Institutions complain a lot about the work involved in updating Info Source and, in many cases, they do not do it. Is it really a reliable source? I encourage people to contact requesters to understand their requests. I also encourage complainants to call to find out what kind of information they need and which institution they should apply to because, in some cases, people search, but the information is somewhere else and they do not know that if they do not check the website.
I do not think Info Source is necessary, but section 6 would have to be removed.
Senator Carignan: So, it could be useful, but not essential.
Ms. Maynard: Yes.
Senator Pratte: Good afternoon. I want to take another look at the issue of your power to make orders. When we raised the issue with the Treasury Board officials and the minister, we were basically told that, first, the act states that the legislation is binding on the government. The order is from the commissioner, and it’s worth something.
Second, if an institution does nothing, a mandamus application must be submitted to the Federal Court. We were told that these steps must be taken and that it wasn’t complicated. Do you agree? Does this lead you to believe that your method should be used instead, meaning that your orders should be ratified by the Federal Court?
Ms. Maynard: As I said in my presentation, a mandamus application isn’t an easy process. It takes six to seven months to obtain a court order that requires the institution to act on the Office of the Information Commissioner’s order. A certification or a provision of the act that ensures that the institutions know that the order could be certified and that a failure to comply with the order could constitute contempt of court has a significant deterrent impact. The institutions would be required to make a decision on whether they’ll comply with the order or file an appeal. I think that this is very important.
It also makes me laugh when people say that the sections of the act are binding on the government. I receive 2,400 complaints a year regarding the interpretation of the act. Half the time, I conclude that the institution may not have met the requirements of some sections of the act. Although we expect the institutions to comply with the act, they don’t always do so. It’s really about the act and not about the commissioner’s orders.
Senator Pratte: Second, the Office of the Information Commissioner has always been opposed to charging fees to people who make access to information requests. I can see that, under Bill C-58, the $5 fee is retained and there’s still a chance that the fee could increase fivefold. In addition, the door is open to all sorts of fees that would be adopted through regulations. I’m a little surprised that you don’t mention this in your recommendations, because there’s still significant potential for additional fees.
Ms. Maynard: I’d say that we pick our battles. Anything involving fees has the potential to limit access to information. We’re not in favour of adding fees. I’m pleased to see that the ability to assess costs for searches has been eliminated, since these costs were used to reduce the size of certain requests or to prevent certain requests from being massive.
Unfortunately, without clause 6, a person can’t be denied access when the request is astronomical or made in bad faith. We lack a mechanism to ensure that institutions can work with complainants to try to establish a more reasonable request. I don’t think that the use of fees should be a barrier to access requests.
Senator Pratte: Thank you.
Senator McCoy: One of my questions was to be about the enforceability of the information commissioner’s order, but I think that has been well put on the record. We need more witnesses to explore it further.
Let me turn my attention to another question. I am struggling to remember. The minister said quickly he was giving you more money. Was it $12 million he was planning?
Ms. Maynard: I wish.
Senator McCoy: How much is he going to give you?
Ms. Maynard: Currently my budget is $11 million. We were told we would receive $1.7 million to implement the new authorities and the new provisions of the act with Bill C-58. That’s an additional $1.7 million.
Senator McCoy: Is it for the next fiscal year?
Ms. Maynard: It is for the next five years, per year.
Senator McCoy: That is not meant to help you clean up the backlog.
Ms. Maynard: No, unfortunately. For the last six months, my office and I have been working on trying to demonstrate that in the last six years the number of complaints we’ve received has increased by 25 per cent and our budget has not been increased. The number of access requests in the government has increased by 225 per cent.
You can see a parallel with the number of complaints we receive and the increase. We have been fortunate to receive temporary funding for the last three years but, as I am sure you understand, with temporary funding you can only hire temporary employees.
You form them, you train them, and they leave after a year. Then you have to start back from scratch. You have to start a new competition or rely on a consultant, which is an expensive resource. I’ve been asking for permanent funding so that I can have permanent employees, retain them as long as we can, and train them so they can stay with us.
Senator McCoy: How many more staff are you looking for?
Ms. Maynard: With the $1.7 million, we’re looking at hiring 15 new FTEs, approximately. The majority of these would be concentrating their work on the new authorization process under section 6, so that the process would not delay any further the requests and the response to requests.
We also need to work on the publication of the orders, which is a new authority that I am very excited about. Right now, we have no way to make our decisions public, apart from annual reports and special reports, which I find is not the right way to make sure that institutions understand my decision and that we can have a consistent approach among the institutions. That’s something we need to invest in.
We’ve been asking for $3 million additional funding to make sure that we get rid of the 3,500 complaints that we have right now in our backlog.
Senator McCoy: None of that goes to any of the institutions that are causing the complaints.
Ms. Maynard: No. The institutions will definitely need more funding also. As I said, some institutions have the funding. They just can’t find the bodies, which was surprising to me. When we did our own competition or processes to hire investigators, we realized that institutions were often stealing people that were trained from each other.
There’s a big shortage of analysts within institutions. I am trying to go outside rather than inside the government right now to hire new people, so that I don’t steal from them and make it even worse.
Senator McCoy: Let me turn to the question of annual or five-year reviews of the act. I am pleased that the one-year implementation will be removed. Somebody will presumably put that amendment forward on behalf of the minister.
That reminds me: Have you seen the amendments that he is proposing? Are you giving him suggested wording for any of those?
Ms. Maynard: We’ve provided suggested wording with respect to the joint letter with Mr. Therrien for the privacy involvement in the investigation. We have not provided any wording because the period to remove that paragraph along with section 6 would be easy.
Senator McCoy: Carrying on this line of questioning, the fact of the matter is that the reviews are ministerial reviews. It is not like a parliamentary review. In my office, the clever young people that they are, said, “Just a minute. We just read Bill C-59 as well.” They pulled up the two sections side by side.
For the National Security Act, a review of the provisions and operations of this act must be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.
At that point the public has access and people have access. A ministerial review is entirely in house. Are you being polite to think that there will be room for consultation?
Ms. Maynard: I am maybe naive, maybe not polite.
Senator McCoy: Those are generous motivations.
Ms. Maynard: I think you raised a really good point. We all know that some of those reviews are done, are delayed or, ultimately, don’t amount to amendments to the act.
Anything to ensure that the actual review would be taken seriously and would be done, anything that would add teeth to the review and ensure that especially the next one will be taken seriously, would be helpful because this act definitely needs to be looked at further.
The Chair: The only point I would like to draw to your attention, Ms. Maynard, is that you’re an agent of Parliament. You’re our agent. You don’t work for the government; you work for Parliament.
There’s a fundamental distinction between your status and the status of the witnesses that we have from the departments of justice and security. I don’t want to diminish your role, but you are our employee.
Ms. Maynard: With respect, I define myself as being the regulator. I am there to make sure the act, which you as Parliament are deciding on, will be respected.
I do have an office that has 35 years of data. I will use that data to make recommendations and provide advice because we know what works, what doesn’t work, what institutions like, what they don’t like, and what stakeholders like.
I talk with them daily, but at the end of the day I cannot see myself being the one saying what the act should say. I am making recommendations and providing advice. I will work and do my due diligence when I actually apply the act that has been given to me by Parliament.
The Chair: Part of your effectiveness is ourselves as an institution of Parliament, the Senate and the House of Commons. That is essentially the status of how you are defined constitutionally.
Senator Lankin: Mr. Chair, through you to the clerk, I know that we have a copy of the first letter that the Information Commissioner referred to, namely, her letter to Minister Brison, but there has also been reference to the joint letter from the information and privacy commissioners.
The minister asked us to review that. Do we have a copy of it already?
The Chair: It has been circulated. I have read it personally.
Senator Lankin: I haven’t seen anything.
The Chair: There are new members on the committee, so we’ll make sure all new senators are updated in terms of their background information so that they have all the information needed.
Senator Lankin: I thought we had, but I think I am missing that. That would be great.
Can you elaborate a bit on what was in that letter from the two of you, where you agree and where you disagree? As I listened to you speak, there seem to be some areas where you might differ.
Ms. Maynard: With Mr. Therrien?
Senator Lankin: Yes. On the issue of the balance between protection of privacy and access to information, what is the key concern? I’ve read your letter but not the joint letter.
Ms. Maynard: My letter didn’t address that at all. If there is an institution that has a complaint about a file, the current wording of Bill C-58 suggests that they use section 19, which is personal information to redact the documents. We’re doing an investigation, but they could contact Mr. Therrien’s office themselves to raise the issue that we’re investigating and involve them in the investigation.
That was very discretionary. We have numbers in there, but section 19 is the most-used section in all the complaint cases that we receive. For about 90 per cent of those cases, the requester doesn’t want the information that is protected by personal information. They often will say to us at the complaint stage, “I am okay with section 19 of the Access to Information Act. I don’t really want that. I want you to focus here.”
Having the institution contact Mr. Therrien every time we have a complaint involving section 19 would amount to a huge number of files. We both agree that he would need to be involved when I disagree that there was a section 19 exclusion that redactions should be done under section 19. I would let him know that I am about to make an order on a specific case. In the last six years, it amounts to about 14 files where we disagreed with the institution’s application of section 19 and were willing to go to court on those cases.
He would be involved with the investigation stage to make representation. He would also receive my final report. It’s a mandatory consultation. We went from discretionary to where it would be mandatory for me to contact him
It is difficult to know what it would be, but in some cases where there is a new type of information or something new is being argued for the first time, I could go on my own to consult Mr. Therrien on issues where it involves personal information. I can use his expertise.
We’ve been interpreting the act and what is personal information for the last 34 years, but having somebody focused on privacy and the protection of privacy in those cases would be relevant. We both agree that those cases would be the best use of our resources to protect Canadians, on one side, and to make sure that we have access, on the other side.
Senator Lankin: I think I understood you to say that in that letter you provided suggested wording.
The Chair: I have the letter under my eyes and there is specific wording proposed for each of the points, whereby the two of them make recommendations to the President of the Treasury Board.
Senator Lankin: With respect to recommendations 3 and 4 certifying your orders as orders of the Federal Court, you mentioned explicitly with recommendations 1 and 2 the minister’s support. The minister has encouraged us to read your joint letter, so I don’t know if that means he supports that.
Ms. Maynard: Yes.
Senator Lankin: Good. What about the court order?
Ms. Maynard: He doesn’t support the certification.
Senator Lankin: Do you want to talk to that a bit more? Are there other parliamentary agents or other commissioners that have that? I have spoken to some of the administrative law tribunals that do.
Ms. Maynard: Yes, actually the RCC. A few federal tribunals have it. The closest one to me would be the Newfoundland commissioner who has a very similar function as mine. It’s half ombudsman and half tribunal. His recommendations could be certified as orders of the court.
We contacted him this week because their act has been inactive since 2015. He has never had to use certification, but it’s there in case. He only had to go to court three times to defend one of his decisions.
I highly invite you to read the act of Newfoundland. It’s very similar to what we are proposing here.
Senator Gold: My question was asked and you answered it.
I have another more technical question. I gather that you’re comfortable with the mandate to decline to act on an access request if the request is vexatious or made in bad faith, given that provincial case law on the matter exists.
The bill describes your authority and the institutions’ authority in slightly different ways. I’d like you to comment on this. I apologize if the question is too technical. Under paragraph 6.1(1)(c), the institution can decline to act on a request if the request is “vexatious, is made in bad faith or is otherwise an abuse of the right to make a request for access to records.” However, your authority is described in a slightly different way in cases where the complaint is trivial, vexatious or made in bad faith. There’s no reference to an abuse of process. Are you concerned about these changes?
Ms. Maynard: No, since we can see the difference. When an access request is submitted, by exercising this authority, I would allow them to not provide access. The provision is linked to the access request. Once the access request has been made and the complaint has been sent to me, I would have the authority to not investigate the complaint. The person will have already received a response to the access request. It’s a different issue. I don’t think that the measure is used very often, but sometimes complainants submit three complaints regarding the same access request, since they’re dissatisfied. In this type of situation, I must deal with the three complaints, since I don’t have the authority to not investigate.
The measure is specific to the complaints, if I decide to not open a file. For the access request, the measure must be truly exceptional, since institutions must be allowed to not respond to the access request as such.
Senator Gold: I gather that you’re comfortable with the fact that the institution can claim an abuse of the right in relation to the scope of your authority.
Ms. Maynard: The institution will have the burden of proof. The institution must convince me that a requester’s requests are vexatious, made in bad faith or constitute an abuse of the right to make an access request. In this type of case, we must follow the process and ask the person who made the request whether they have any arguments. We then make a decision. I don’t have any issues with making this decision. I think that it’s good to add the fact that you need to go through me before this is done.
The Chair: You can use certain case law as parameters. There have been recent Federal Court decisions on this type of issue. In my view, the decisions are very clear.
Senator Gold, I don’t know if you have read those decisions, but they are very clearly framed in the way of the criteria that the court has been following.
Senator Gold: That answers my question. I wasn’t interested in this aspect, but in the different way that it’s written for the institution and the commissioner.
Senator Pate: Thank you for being here.
As you no doubt are aware, Correctional Service Canada is the top of the list in terms of departments and agencies that take the longest to respond and have outstanding requests. As of April of this year I understand the average wait was 542 days, or approaching two years, and in fact we have heard evidence that it has been as high as a 10-year or 11-year wait. At that time, as well, there was a backlog of 14,668 files.
Whether or not the recommendations you’ve made about amending section 6 happen, what other efforts are you taking to ensure that those who are incarcerated in the country have access to the information?
Many of them are poor, so the application fees are already an impediment in many cases. How will they ensure they will have speedier access to the documents?
Then, to add to that, in light of the new changes proposed yesterday to effectively rename segregation and remove the procedural safeguards that currently exist, how will individuals get access given the restrictions that are being proposed by this legislation? How will you ensure that people have access to you and that they have access to their documents?
Ms. Maynard: I don’t know that I’ve been briefed on the particular issue. It hasn’t been raised as a concern specifically with complaints. I am dealing mainly with my backlog right now, and I am trying to understand the challenges faced by institutions.
This particular institution has many issues with finding ways to respond to volumes, lack of resources, staffing and training. All I can do is focus on what I can do on hand to help them. I’ve been issuing more guidance and more examples of cases and how we interpret the act, so that maybe institutions can use them as precedents and apply them to their own cases.
I am actually also looking at maybe doing some audits in some of those institutions, because I have the authority to do that, to determine, specifically for each of those institutions that are really struggling, the causes of these major breakdowns and making specific recommendations to their minister that would really apply to them. That’s something I am considering doing in the next six months.
All Canadians, wherever they are, should have access. Unfortunately they often have to go through a family member or a lawyer to ask for information. We see the same for refugees who are not Canadians. That’s why IRCC is having so many requests.
There is still a lot to do in those situations. Unfortunately, I don’t have a specific answer for you. I don’t know if Ms. Strandberg or Ms. Knight have any answers.
Senator Pate: I have a supplementary question. If it’s of assistance, one of the case studies you might want to use for that is the efforts that were made in your office. Your predecessor was helpful in making a decision, but it took two Federal Court applications to get information about Ashley Smith, the woman who had died in custody.
That might provide a really good but horrible case study of all the barriers that were put up all along the way, including with three outside lawyers involved.
Ms. Maynard: Thank you.
Senator Dagenais: Thank you for your presentation, Ms. Maynard. I don’t normally sit on this committee, but today I’m replacing someone.
I’m interested in one thing in particular. I’ll use a typical example that everyone will understand. Let’s talk about the sponsorship scandal. When journalists investigate questionable political decisions or actions involving politicians or political staff, they want to obtain information quickly. How would your new provisions benefit journalists?
Ms. Maynard: Journalists?
Senator Dagenais: Yes.
Ms. Maynard: The most important change for me will be the power to make orders and not only recommendations. I’ll have both authorities.
The other interesting aspect of the new act, which some people seem to forget, is the fact that I’m not losing the authority to represent. When an institution refuses or appeals the order that I would have the power to issue under the new act, the commissioners or the courts often don’t have access to the Federal Court to explain or defend their position. However, in this act, the authority to appear on behalf of the complainant, journalists or any other person is retained. Members of Indigenous communities were very pleased with this aspect. My office has needed to go to Federal Court a number of times to represent Indigenous people in cases where they wouldn’t have been able to afford representation. That’s very important to me. With the orders, we’ll give teeth to our recommendations, in the hope that the recommendations will be taken more seriously.
Since the beginning of my mandate, I’ve made seven recommendations. This is more than what has happened in recent years, and the institutions are responding positively. Earlier today, we were talking about negotiations. At some point, we need to stop negotiating and agree to disagree on certain applications of the act. This is perfectly acceptable. I’m always telling my employees, institutions and deputy ministers that it’s acceptable to disagree on an issue. Moreover, this is sometimes what moves legislation and case law forward. Whereas we used to finalize a file with a recommendation, now I can do so with an order. I believe that this measure will help the institutions become more consistent in their application.
Senator Dagenais: Thank you, Ms. Maynard.
The Chair: If it were certified, it would be even more pressing. I usually wait to the end to intervene, but I have Senator Dalphond before I question you on that aspect.
I know he could make the comments that I wish to make also.
Senator Dalphond: Thank you for being here. My question will be brief. As you know, I’ve spent a good part of my life in courtrooms. Clauses 90.05 et seq. concern transparency, which will now be required of judges on an individual basis. I gather that you spoke about this matter before the House of Commons committee, or your predecessor did so.
Ms. Maynard: Maybe my predecessor, but not me.
Senator Dalphond: I mean that the Office of the Information Commissioner’s recommendation was to obtain the disclosure of the total amount per court rather than the individual amount spent on travel for each judge carrying out their duties. Is that still your office’s position?
Ms. Maynard: I want to add a comment on this issue in particular. I think that some information in Part 2 is misunderstood. First, my office will have no authority to investigate the proactive disclosure of information by new institutions subject to Part 2. My office will continue to have the authority for the institutions subject to Part 1. I’ll have no authority to negotiate or discuss these duties with judges, the Senate or the parliamentary community.
Personally, I think that Canadians want to know more about how their money is spent. This fact is demonstrated by the access requests and the many complaints that we receive in this regard. Will the consolidation be enough to meet their need to know more? I don’t know. I look forward to seeing whether the disclosure of the judges’ travel or meal expenses will affect the independence of judges.
Senator Dalphond: I’m not talking about travel or meal expenses, but about the costs involved in the performance of judicial duties, in circuit courts, when judges travel from city to city to hear cases.
The Chair: If we want to come back after the vote, I am sure that Ms. Maynard could remain available.
Could I seek the views of the senators around the table? Do you want to reconvene, or do you feel you have heard what you had in mind for Ms. Maynard?
Thank you, Ms. Maynard.
Senator Carignan: I gather that you want to let Ms. Maynard go?
The Chair: I’m wondering whether you want to come back to the table after the vote. We had scheduled two hours with Ms. Maynard.
Senator Carignan: I still have questions, but I don’t want to be the only one either.
Senator Pratte: Another committee is after this one. I would be happy to come back, but we shouldn’t extend the sitting until 8 p.m.
The Chair: I agree. If you want to stay, Ms. Maynard, we’ll go vote, and then we’ll come back.
(The committee suspended.)
(The committee resumed.)
The Chair: Honourable senators, we’ll continue our discussion with the Information Commissioner and with the two staff members accompanying her. This is the second round of the question period.
Senator Boisvenu: I have two questions, and I’ll be brief. Canada has moved from forty-ninth place to fifty-ninth place in terms of access to information. It’s almost at the level of third world countries. For a country as democratic as Canada, this is quite embarrassing.
According to many criticisms of this bill, Canada will make very slow progress toward achieving better results. I’m thinking of Sweden, which ranks third in the world.
Should the committee invite the countries that have made major reforms over the past decade to explain their approach and to ask them to compare their approach to what we have before us to ensure that, in 10 years, Canada ranks among the best?
Ms. Maynard: This study, which ranked Canada in fifty-ninth place, assesses only the content of our legislation and not the implementation of our legislation. Our legislation was drafted 35 years ago. Based on the provisions of our legislation, our country is in fiftieth place. Mexico and Afghanistan are in first and second place.
There’s no method at this time. No organization is checking the implementation of legislation by governments. It would be interesting to know how Canada would rank. That’s what makes the difference. Obviously, with Bill C-58 and the factors assessed in our legislation, our rank wouldn’t increase much, since our legislation isn’t open to anyone who isn’t only Canadian. Not all departments, ministers and offices are subject to the legislation.
So there are a number of key factors. I don’t know whether someone from another country could help you. We must be careful, since perfect legislation doesn’t lead to perfect access.
Senator Boisvenu: I gather that we can review certain models for comparison purposes and to ensure that we take the easiest possible path to improvement.
Ms. Maynard: Newfoundland, which amended its legislation in 2015, ranks high on the list in comparison with the act.
Senator Boisvenu: We should listen to them.
Ms. Maynard: We often refer to this model.
Senator Boisvenu: The bill states that a request can be denied if the record may reasonably be accessed by other means. The word “reasonably” is not defined in the bill. Are we going to let the legislator define this word or should we define what’s reasonable and what’s not?
Ms. Maynard: You’re referring to paragraph 6.1(1)(a)?
Senator Boisvenu: Yes.
Ms. Maynard: As it stands, the provision sets out three circumstances in which institutions can decline to act on an access request, but they require my authorization to do so. I will be responsible for interpreting the various provisions. Of course, they will be given guidelines based on existing provincial case law — what has already been interpreted and how.
I was surprised when I saw new paragraphs 6.1(1)(a) and 6.1(1)(b), because most jurisdictions have something similar to new paragraph 6.1(1)(c), which deals with requests that are vexatious or made in bad faith. I don’t think you’ll find a jurisdiction with provisions equivalent to the two new paragraphs I mentioned. In my view, they will be interpreted very restrictively, keeping in mind that the idea is to provide as much access to people as possible. New paragraphs 6.1(1)(a) and 6.1(1)(b) should be interpreted through the lens of “bad faith” or “vexatious” requests. Everything could be covered off in new paragraph 6.1(1)(c), making paragraphs 6.1(1)(a) and 6.1(1)(b) unnecessary. The ultimate goal is to eliminate unreasonable requests that lead to excessive searches or that are genuinely made in bad faith. The idea is to prevent requests that are not consistent with the purpose of the act, which account for less than 1 per cent of all requests.
Senator Boisvenu: Thank you.
Senator Carignan: I have a question about your role as an agent of Parliament. I’m surprised that a bill would allow a federal institution to challenge the decision of an agent of Parliament. To your knowledge, do any of the statutes establishing other agent of Parliament positions, or related enabling statutes, contain provisions authorizing federal institutions to challenge decisions of the agent of Parliament?
Ms. Maynard: Any administrative decision made by a tribunal or a quasi-judicial tribunal —
Senator Carignan: That’s fine, but you are an agent of Parliament.
Ms. Maynard: Yes. I’m not sure whether any of my fellow agents of Parliament are in the same situation. Actually, yes, when the Commissioner of Official Languages makes recommendations, they can be subject to judicial review.
Senator Carignan: Further to a challenge by the federal institution?
Ms. Maynard: By the institution.
Senator Carignan: A judicial review?
Ms. Maynard: Yes, but I’m not sure whether the onus or review is de novo. I’m not familiar with the specifics, but I do know the decision can be appealed before the Federal Court.
Senator Carignan: What about your provincial counterparts?
Ms. Maynard: Yes. All the information commissioners have different powers. Commissioners in Quebec and Ontario are equivalent to tribunals, and they make judicial decisions. Appeals are possible, but the commissioners play more of a respondent role in that case and are not permitted to comment on the merits of their decision. That’s different than what is being proposed in the current legislation.
Senator Pratte: You mentioned earlier that proactive disclosure is not the same as compliance with the Access to Information Act. There’s something I find a bit troubling. The bill clearly states that you have no authority as soon as Part 2 comes into play.
Ms. Maynard: Yes.
Senator Pratte: What I care about is, not that you review all the information disclosed on a proactive basis, but that proactive publication be respected and fully deployed. I think that would be beneficial. It would also be useful for you to have some sort of automatic oversight in order to tell people that proactive disclosure works fairly well. As Senator Carignan pointed out, certain public servants do not document their discussions, meaning that the information is missing from the record. Have you thought about how you might put into practice that oversight in relation to Part 2 of the legislation?
Ms. Maynard: As I mentioned, the bill does not currently provide for that. To demonstrate that oversight is warranted, I plan to track how many times people submit access to information complaints in the course of the next year. An authority such as an auditor comes to mind, a bit like the Auditor General who audits institutions, which are required to meet certain financial obligations. A mechanism like that might be an option. If I were given additional powers, I would need the resources commensurate with those powers.
Our office already does that in relation to institutions, so we could also do it for Part 2.
Senator Pratte: Clearly, you would need the resources if you were given that role.
Ms. Maynard: Yes.
Senator Pratte: From a more technical standpoint, if we were simply to get rid of the provision that prohibits your involvement in anything related to Part 2 — I can’t remember which one it is, new section 92, perhaps — would you have oversight authority?
Ms. Maynard: I don’t think so, because, as I understand it, my role pertains to government institutions under Part 1. My mandate relates specifically to Part 1, so a clear amendment would be necessary in order to expand my purview to Part 2.
The Chair: Senator, the only problem with that might be parliamentary privilege. It would be necessary to assess the impact of giving the Information Commissioner the mandate to ensure that every senator, minister or member of Parliament disclosed the information described in the bill, as required, and to what extent that would mean managing parliamentary privilege. That is inherent in excluding the Information Commissioner from Part 2, not to mention — I’m looking at Senator Dalphond, here — that the principle of judicial independence comes into play indirectly.
There is an interface, then, between Part 2 and certain constitutional principles, so that would have to be evaluated first. I’m not saying it’s not possible. I’m simply saying that, having read the bill with those things in mind, I get the sense that may be why the decision was made to exclude you at the statutory level from Part 2.
Senator Pratte: Thank you. That’s a good point.
Senator McCoy: I want to follow up on Senator Boisvenu’s line of questioning having to do with the statutory framework.
I must admit that one of the things that quite shocked me, early on when I was looking at this bill, was hearing from your predecessor that neither she nor the Privacy Commissioner had been consulted at all on its framing. It is flawed as a result, in my view.
Let me be simple in asking about international standards for access to information. Surely there must be some model laws or something. Your office must have looked at these things.
Perhaps you could enlighten us about that. Then, if we have a parliamentary review of this subject, we could really begin to design an access bill that would be appropriate for the 21st century.
Ms. Maynard: I want to start with a statement. You’re right that my office, my predecessor and Mr. Therrien were not consulted before Bill C-58 was submitted. This was unfortunate because my office has an amazing amount of data, research and reviews. They’ve done tables to compare different institutions in other jurisdictions internal to Canada with other countries.
The office wrote a modernization report in 2015. I highly recommend that you review it. It’s very detailed on what issues we’ve been seeing and what changes could be added to the act.
We welcome any consultation from the government in discussing this report and other recommendations. I would be willing and available.
The Chair: In relation to this report, could you point out which aspects of the bill were not covered by your report at that time?
In other words, which essential elements of the report that you released in 2015 were left wanting in relation to the bill? I think that exercise could be helpful for members of our committee.
Ms. Maynard: All the exclusions and exemptions, definitely. I was giving an example today of section 21, which is one of the exemptions that causes a lot of grief. When institutions want to exclude recommendations and advice provided to officials of different departments, they use section 21. It has been used broadly.
We often disagree because if you have briefing notes you know the background and facts. Some of those can be disclosed, but we still see cases where the entire briefing note is blacked out.
We need to have a better understanding of what is advice, what is a recommendation, and in what cases those exemptions under section 21 should be used. That’s one of the examples.
Part 1 should be for everyone in a minister’s office and the Prime Minister’s office. It’s something that our report was recommending, and we came back with a part 2 proactive disclosure. It’s a good step. It’s better than what we have right now.
Is it what Canadians need and want? I don’t think the act and the changes to the act are what we all expected. With the four different amendments I’ve made, we are in a better situation than the status quo, but we would need to have a better review next time around, for sure.
Senator Lankin: I want to ask about the issue of review. Within the legislation there are one-year and five-year provisions and the possibility for permanent review of the act by parliamentary committee.
I am reading the section right now. There are three different types of reviews. I think Senator McCoy spoke to the possibility of a future review of the act and of looking to the comparison work you’ve done and what a model might be for the future.
Are there any provisions in this act with respect to review that you disagree with or that you think need to be changed or amended in any particular way?
Ms. Maynard: Senator McCoy was saying that currently the wording of the review is that it would be government that would be responsible to initiate and do those reviews, whereas if the houses of Parliament were to be responsible, there would be better consultation with the Canadian public and stakeholders. It would potentially have better results and force government to respond to that review.
Senator Lankin: Commissioner, am I misunderstanding something with respect to section 99, titled “Permanent review of Act by Parliamentary committee?”
Senator McCoy: I am looking at section 93. Are you looking at section 99?
The Chair: What Senator McCoy is quoting is at section 93, at the top of page 35.
Ms. Maynard: I am going to let my colleague explain to you the difference between the two.
Senator Lankin: I understand the difference, but it has been said at this table, and it wasn’t corrected, that it is only ministerial review and there is not a parliamentary review.
Ms. Maynard: It’s only a ministerial review. The parliamentary reviews that are mentioned in section 99 are with respect to the reports that are provided to Parliament.
Jacqueline Strandberg, Manager of Policy and Parliamentary Affairs, Office of the Information Commissioner of Canada: Every institution files administrative reports every year, so I believe that’s what section 99 is about. It is more with respect to those administrative reports every institution files or tables every year, whereas the actual legislative review is at section 93.
Senator Lankin: I tend to agree that it should be a parliamentary review and not a ministerial review. I also think this provision can be used.
If we’re reviewing your reports, we’re reviewing what you’re able to do. If there are shortcomings, you can explain to us why, et cetera.
Ms. Maynard: I need to use my special reports mechanism more often, for sure.
Senator Lankin: Yes.
The Chair: Madam Maynard, I think about your report recommendations in terms of amendments and that your decision is certified, versus what the bill contains.
Your orders are not certified, and the bill provides that when a citizen wants to move on his or her right, he or she would have to go to the Federal Court to seek a mandamus. It would be a procedure, as the bill says, to start de novo.
It is as if you have not ordered anything.
Ms. Maynard: There is a difference here. If I make an order to an institution that they should disclose more information because I don’t agree with the application of the exemptions, they have two choices. They respect it or they appeal it, but my problem is: What if they don’t act on it?
The Chair: That is it.
Ms. Maynard: What if I don’t have an answer from the institution after 30 days?
The Chair: Then it remains dead letter.
Ms. Maynard: Yes, then I have to go to the Federal Court and certify. Under the current regime, I would have to go to court myself and ask the court to order the institution to act on my order, which is through a motion of mandamus.
The Chair: Yes.
Ms. Maynard: As you know, it is a big deal.
The Chair: Not only is it a big deal, but, in my opinion, of the Federal Court it is very seldom ordered. I am trying to recall, and my memory may fail me, but I don’t remember the last time the Federal Court ordered a mandamus. It’s a very exceptional procedure.
In other words, if the administration is not bound by the certification of your decision, in fact it acts at the benefit of the administration. If your order is certified, it acts at the benefit of the user of the act.
What you are requesting of us is to re-establish the balance in favour of the user. That is the way I have tried to figure out the dynamics that it would create in the system if your request for your order to be certified was accepted by Parliament.
Ms. Maynard: Yes.
The Chair: In other words, we would rebalance the rapport between the user and the administration. By not having your order certified, it’s in favour of the administration just to say, “We don’t act on this. Forget it. Go away.”
Ms. Maynard: Then I would have to fight again. If they don’t agree, they have a mechanism to appeal the order. If they appealed it on that particular issue, we would go to court and it would be de novo.
The institution’s decision not to disclose would be reviewed by the court to determine whether or not they made the right decision, but I would have the possibility to present my position on the case.
The Chair: Exactly.
Ms. Maynard: Again representing those cases.
The Chair: You are the one going to court. When you go to court, you have the capacity of an agency with public funds. In my opinion, that is the important distinction between the two.
May I ask you, via your legal adviser, to review when the last time was the Federal Court ordered mandamus and in which conditions?
Senator Dalphond might correct me, but I think it is a very extraordinary procedure that judges are generally reluctant to order, unless it’s a blatant case of bad faith of the administration and the case is exceptional.
Ms. Maynard: They may review the institution not appealing the order. If they don’t agree with it, you would think they would have to agree to it.
The Chair: Yes.
Ms. Maynard: My concern is: How long is it going to take? How much time do we have to wait for this? If it’s 30 days, they have 30 days to appeal. After 30 days I am expecting more disclosure.
The Chair: I want to come back on one thing. If your decision is certified, then the administration is facing an order that has a judicial nature.
Ms. Maynard: Yes.
The Chair: However, if your order is not certified, it is an administrative request as any other administrative request.
In other words, my evaluation of your request is that it gives much more strength to your order to compel the administration to follow and disclose what you request.
Ms. Maynard: My argument is the fact that just it is there in the act gives that strength. Maybe I won’t need to do it, but I am hoping I won’t have to do it.
The Chair: Absolutely. It would have the effect of creating, by the nature of your order, pressure on the administration to think twice before saying nothing.
Ms. Maynard: To respond.
The Chair: Exactly.
Ms. Maynard: That is it.
The Chair: It would create a different dynamic in the overall administration of information. That’s my evaluation of what is legal.
Ms. Maynard: I agree. That is why I am saying that this bill is way better than the status quo, as long as you agree with my four recommendations. I need certification, for sure.
The Chair: That seems to me to be a major element because it’s always balancing the rights of citizens to know and the administration to be able to administer its responsibility the way it wants.
At a point in time there is a meeting of the two, and how do we balance the right of a citizen to have access to information to exercise his or her democratic right to keep the government to account and to make a decision to vote?
It’s through you. You are our agent. You act on behalf of Parliament. It’s for us to decide to what point you need to have pressure on the administration by the very nature of your power to maintain that flow of information.
Ms. Maynard: And the respect of the act.
The Chair: Absolutely.
Ms. Maynard: I can look into it.
The Chair: If you want to look at it through your legal service, I would certainly be interested and some other senators would be interested about this.
Senator Pratte: If the bill is amended and the government agrees to allow your orders to be certified, what will happen with appeal hearings for new cases? If you issue an order, it isn’t certified immediately. First, you issue it, and then, the institution can decide how it wants to respond. If an institution senses that certification is looming, it may decide to appeal right away because it will be a de novo review in any case.
Am I wrong to think that the order completely disappears in that case?
Ms. Maynard: It doesn’t disappear. A de novo review means that it is no longer my decision being reviewed. It means the institution’s decision is being reviewed further, for a second time. I think the benefit of the current process is that I will be able to participate in the appeal and present the arguments showing that more disclosures should be made.
Keep in mind that when I issue an order, it means I disagree with how the institution applied the act. My order will become part of the file, but the court will take into account, not just the information I was given, but also any new representations, either by myself or the institution, in relation to the record requested.
The Chair: To help answer that, I would say this.
In the case of a decision related to an order that has been certified, for instance, the appeal is the appeal on an administrative review basis. Senator Dalphond and Senator Carignan, a lawyer, would concur with me that it is an administrative review. When it is de novo, it is no longer an administrative review. We start again.
Ms. Maynard: Yes.
The Chair: The court is not seized of the revision of the decision of Madam Commissioner.
Ms. Maynard: The initial decision, you mean.
The Chair: Yes, we start again with an initial decision. It’s two different judicial reviews.
Senator Pratte: I’d like to know what the point of a provision providing for a de novo hearing is, if certification of the commissioner’s orders is permitted. That’s my question.
Senator Carignan: If I understand what you are asking — and correct me if I’m wrong — what you are trying to do, by having your order certified, is to make it equivalent to a Federal Court order.
Ms. Maynard: A Federal Court order, yes.
Senator Carignan: To challenge the order, someone would have to apply to the Federal Court of Appeal.
Ms. Maynard: When an order is certified, those who do not respect the decision are considered to be in contempt of court.
Senator Carignan: Yes, I understand that. If people want to challenge the order, however, do they have to apply to the Federal Court of Appeal or the Federal Court?
Ms. Maynard: The Federal Court.
Senator Carignan: In that case, it would be a judicial review.
Ms. Maynard: It would be a challenge of the review.
Senator Carignan: Yes, according to judicial review, not appeal, requirements and with all the restraint and specialization that go along with it. Is that the case? I’m not sure.
Ms. Maynard: Yes. In my view, at a certain point, the institution has an obligation to make a decision, to either respect the order or not. If it wishes to challenge the order, it has to appeal it. If it challenges the certification of the order, that’s something that will have to be reviewed. At that point, the time to file an appeal has run out and the order can no longer be appealed. The institution has to respect the order as is.
Senator Carignan: You’re saying that, under the current legislation, when institutions choose not to make a decision, it’s necessary to apply for a mandamus to the court.
Ms. Maynard: Yes, under Bill C-58, in its current form.
Senator Carignan: A mandamus application is necessary, then.
Ms. Maynard: Yes, to force the organization to respect the order and act accordingly.
Senator Carignan: It takes an obligation to act in a specified way.
The Chair: For the understanding of everybody around the table, I am sure that your legal advisers will read the minutes and the exchanges that we’re having now because you request an amendment. Everybody around the table will want to understand very simply and clearly the implications of the various steps.
Questions have been raised around the table, and I am sure there will be other questions. It is essential for us, if we are to amend the legislation, to really measure the impact it will have in terms of your stand in the court, the user in the court, the citizens who request the information and the administration.
Ms. Maynard: To provide certification.
The Chair: Exactly.
Senator Lankin: That’s what I wanted.
The Chair: I am speaking on behalf of everyone.
Ms. Maynard: Would you like me to do this for both: if they appeal the order and if they don’t act on the order?
The Chair: Exactly. For all the questions that have been raised.
Ms. Maynard: Yes, with respect to the order.
The Chair: If you re-read all the points that have been raised, and I see some other points, it would be helpful for us to share the common information.
Senator McCoy: Perhaps we could be thorough all the way. In my conversations with lawyers who are practitioners with ATIP for various clients, they have said that they have difficulty with de novo hearings because they often get sandbagged by departments bringing forward new evidence. They would much prefer a judicial review.
It seems to me that a transition is being put forward. First of all, the Information Commissioner had recommendations. Now we’re making orders, but they didn’t go all the way to enforce the orders. That’s the step we’re looking at.
If you can give an order and it says in the act that you have to write out your reasons and give the facts, you have the kind of order on which you can do a judicial review properly. You then have the benefit of the expertise like you would have with any quasi-judicial function.
I’ve prepared an amendment along this line, but it would be better to have the experts do it. We’ve been talking to legal counsel, our own Law Clerk of the Senate.
The precedent that we reached for may be helpful. There will be others that you know. Canadian Human Rights Commission orders can be certified, so their experience with that provision might be something worth including in this brief.
The Chair: Madam Maynard, I think you understood the point Senator McCoy, which is shared around the table. We want to understand very clearly the impacts so that senators, and the Treasury Board too, are at ease to see the implications. I will not say that we will have a rebuttal, but we will have the comments of the Treasury Board.
Ms. Maynard: Or the Minister of Justice.
Senator Dalphond: I don’t have much to add, since Senator Carignan and Senator McCoy pretty well covered everything I wanted to ask. In labour law, arbitration awards can be submitted to the court registry office for certification to make them equivalent to a court order. However, it’s not the equivalent of a mandamus. It’s not a court order that must be complied with, otherwise the party will be found in contempt of court. It’s merely equivalent to a normal court decision in which the party is ordered to do something. If the party doesn’t do it, the bailiff is sent in.
In the case of a mandamus, who does it target? The minister? The Crown? The Attorney General? I don’t know.
Ms. Maynard: Technically, one of the problems we encounter with the process is that the mandamus is directed to a legal entity. The legal entity has to be found —
Senator Dalphond: Someone has to be in contempt and not following the order.
Ms. Maynard: The access to information coordinator?
The Chair: It might be the deputy minister.
Senator Carignan: The mandamus requirements aren’t straightforward.
Senator Dalphond: The only time I can recall a mandamus injunction or something equivalent directed to a minister was when Joe Clark was Minister of Foreign Affairs. There was a Federal Court order that was heavily challenged.
Senator Carignan: It takes an obligation to act in a specific way.
Senator Dalphond: Precisely.
Senator Carignan: Rarely is the minister under such an obligation. The minister’s authority would have to be defined in the act, as is the case when the Minister of the Environment issues a permit or something of that nature.
Senator Dalphond: That’s why the process has to be carefully thought out. It has to be explained in black and white. If the deadline for appeal is 30 days and the decision has not been complied with during that time, it can be filed with the Registry of the Federal Court to make it equivalent to a Federal Court order. I know what I would do on day 29. I would appeal so you couldn’t file your order on day 30.
In addition, what does filing an order with the court registry involve? Is it simply a formality, or do you have to notify the other party? Can the other party challenge it if you do not notify them? The process has to be considered and examined carefully. The more the process unfolds without the other party’s involvement, the more necessary it becomes to have a challenge mechanism available to the other party. Thought has to be given to what that mechanism would look like.
The Chair: The mandamus might be contemplated in the responsibility to release the information. The judge, who will be faced with many reasons not to release it, will be interpreting in favour of the administration on the basis of the discretionary power.
Ms. Maynard: Basically you’re saying that they would do an appeal of my decision on the basis of the mandamus request.
The Chair: Absolutely. In the context of the responsibility, the way it is framed for the administration and the loopholes there are for the administration to skip the responsibility to release, the chance to get a mandamus is fractional.
Senator McCoy: The Federal Court has a list of criteria that they’ve developed and they’re sticking to them, as to when and when they won’t issue a mandamus.
The Chair: Yes, on the permit.
Senator McCoy: One of the conditions is that the power is mandatory, not discretionary. We’re dealing throughout here with discretionary power.
The court, virtually every time, is going to say, “We can’t deal with this.”
The Chair: That’s exactly my point, senator. We’re saying the same thing.
Ms. Maynard: It’s going to be ultimately my responsibility to prove that.
The Chair: I think your legal team should review what we’ve talked about here, today.
They should review what we have said around the table. You could come back to us with clear answers on the various hypotheses of different situations with the certification, no certification, the appeal in the case of a certification, if the bill stands as is, the potential of mandamus, and the context of the exercise of a mandamus.
That seems to be a way for us to understand if we proceed with your suggestion to amend.
Ms. Maynard: Are you allowing me to do this in writing?
The Chair: Yes, of course.
Ms. Maynard: I think it’s going to be clearer when we see it.
The Chair: Yes, the various points of the bill.
Ms. Maynard: Yes.
The Chair: You see there are senators who are not around the table. It is important for them to share that information if we want to rally a majority support for your amendment.
Ms. Maynard: That is a better understanding.
The Chair: Thank you so much. It was useful. Even though all the members were not around the table, I think you got to the essence of our preoccupation.
Ms. Maynard: Thank you very much.
Thank you for making yourself available this afternoon.
(The committee adjourned.)