Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 51 - Evidence - October 24, 2018
OTTAWA, Wednesday, October 24, 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 4:16 p.m. to continue its study of the bill.
Senator Serge Joyal (Chair) in the chair.
The Chair: Honourable senators, I am pleased to welcome you to the committee this afternoon.
Welcome. We have a very interesting session. First we have the representative of the Canadian Bar Association, Ms. Alexis Kerr. She is accompanied by the person responsible for the ethics issue at the Canadian Bar, Ms. Darcia Senft.
I understand we might be joined later on by the representative of the Canadian Civil Liberties Association. We will welcome them at the point in time that they arrive.
We also welcome, by videoconference, Marc-André Boucher and his colleague Antoine Aylwin, both from Fasken Martineau DuMoulin, who have published on the right to access to information. We are pleased to hear from you, gentlemen.
Once Ms. Kerr has introduced her brief, you know the procedure — five, eight minutes at the most, and then we will have an open discussion and exchange with the senators around the table.
I do not have to remind you, of course, that we are studying Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and other consequential Acts.
J. Alexis Kerr, Vice-Chair, Privacy and Access to Information Law Section, Canadian Bar Association: Good afternoon, honourable senators. Thank you for the opportunity to appear today before the committee.
My colleague Ms. Senft and I are here on behalf of the Canadian Bar Association. I am the Vice-Chair of the CBA’s Privacy and Access law section, and Ms. Senft is the Chair of the CBA Ethics and Professional Responsibility subcommittee.
The CBA itself is a national organization that represents 36,000 jurists and our primary objectives include improvement in the law and in the administration of justice. Our members represent clients from all sides of the access to information regime and, as such, we strive to present a balanced view of the amendments proposed by Bill C-58. Our written submission, which I understand most of you have but we do have additional hard copies if necessary, is a collaborative effort of the privacy and access section, the professional responsibilities subcommittee, as well as the CBA’s judicial issues subcommittee and our Federal Court and Tax Court bench and bar committees.
At the outset, may we say that the CBA is pleased to see that there are efforts being made to modernize the Access to Information Act. We do consider modernization of the act to be long overdue, and we support amendments that will serve to protect and facilitate the quasi-constitutional access to information rights of Canadians.
We are also of the view that Bill C-58 does make some important initial steps in this direction. However, there are still further improvements that the CBA believes can and should be made to Bill C-58 as it is currently drafted.
Our submission addresses in particular three aspects of the bill: Access rights, the protection of solicitor-client privilege, and judicial independence.
On the matter of access rights, we are pleased to learn of the minister’s support for removing the requirement in clause 6 of Bill C-58 that applicants must specify the subject matter, type of record and period of request. We encourage this committee to propose such an amendment.
On the matter of fees in relation to the exercise of access rights, the CBA continues to oppose the imposition of an application fee in order to make an access request under the act. We regard these fees as constituting an unnecessary barrier to the right of access. Alternatively, with respect to all fees, the CBA recommends the adoption of specific fee waiver criteria in addition to the ability to waive fees on the part of a government institution.
We support the proposed one- and five-year statutory reviews of the Access to Information Act, but recommend that these reviews be conducted by a parliamentary committee, with, of course, a full public consultation component.
Finally, and subject to our comments on judicial independence, which Ms. Senft will now detail, we note that proactive disclosure is not a substitute for access rights, and we would welcome the expansion of the scope of part 1 of the act to include organizations such as the Prime Minister’s Office, ministers’ offices, and organizations that support Parliament, subject to an appropriate exclusion for parliamentary privilege.
My colleague Ms. Senft will now briefly address our concerns related to solicitor-client privilege and judicial independence.
Darcia Senft, Chair, Ethics Committee, Canadian Bar Association: Good afternoon, Mr. Chair and honourable senators.
I trust that you’ve had an opportunity to review our written submission, and for that reason I will focus on the key points relating to both solicitor-client privilege issues and also judicial independence.
First, on the issue of solicitor-client privilege, information subject to solicitor-client privilege is exempt from disclosure under federal privacy and access legislation at the discretion of the head of an institution. The amendments proposed in Bill C-58 would give the commissioners authority to review and order the production of information subject to solicitor-client privilege.
I’d like to focus on two issues: First of all, what is required of legislation that purports to compel disclosure of information protected by a solicitor-client privilege; and second, who should adjudicate disputes about privilege claims.
Over the course of several important decisions, the Supreme Court of Canada has established that legislation compelling disclosure of privileged records requires all of the following: Clear, explicit, and unequivocal statutory language; evidence that the disclosure is absolutely necessary to achieve the purposes of the legislation, in other words, a means of last resort; minimal impairment of the privilege; and a meaningful opportunity for clients, not their lawyers, to assert and protect their claims of privilege.
The proposed amendments simply do not meet these criteria. It is not enough to add a few words about solicitor-client privilege to an act and hope that it will then withstand scrutiny, not when our highest court has made it abundantly clear how such information might be compelled and how difficult it should be to compel its production.
Judges are the traditional arbiters of solicitor-client privilege disputes, and, even so, it is extremely rare for judges to review the records in order to resolve the dispute. Most importantly, judges are impartial adjudicators. The privacy and access commissioners are not. In fact, they can become adverse in interest to a public body. Compelled disclosure of privileged information to a potential adversary is an extremely serious intrusion on what is a fundamental underpinning of our justice system. Simply put, the amendment is ill-considered and, from what we understand, unnecessary. We recommend, therefore, that proposed subsections 2 and 2.1 of clause 15 be removed from the bill. I’m happy to comment on subsection 2.2 when we get to questions.
On the issue of proactive publication of judicial expenses, the CBA takes no issue with the accountability of the courts for the expenditure of public funds, but we must not lose sight of the fact that in Canada the judiciary is a separate and independent branch of government. Further, the constitutional principles of judicial independence are not confined merely to decision-making. They encompass individual justices in their decision-making capacity, judicial institutions and administrative processes.
There are delicately balanced mechanisms already in place that are designed to reconcile judicial independence with accountability for the expenditure of public funds. The CBA believes the prudent course is to exempt the judiciary and the courts from the legislation, but we have identified alternatives that we believe are consistent with the overall objectives of the legislation and the principles of judicial independence.
Thank you, senators. We look forward to your questions.
The Chair: Thank you very much.
Antoine Aylwin, Partner, Fasken Martineau DuMoulin S.E.N.C.R.L., s.r.l., as an individual: Thank you, senators. I have a few comments for you before we move to questions.
I understand that the commissioner has to be able to see the documents in order to decide whether the professional secrecy privilege applies. However, I want to remind you of a well-known principle. I believe it was Senator Dalphond who said it in connection with the Aluminerie Alouette case: confidentiality only lives once. In the majority of cases when a third party becomes aware of a document in order to judge its professional secrecy, it is a lawyer or a judge, which the bill does not guarantee at the moment. I feel that this is a consideration you should be aware of.
Second, I believe the power to make orders is a good step forward. By way of comparison, this is a benefit of the access to information system in Quebec that did not exist at federal level. We are in favour of it.
As for the provisions on proactive disclosure, I refer to the comments received from the Canadian Bar Association on judicial independence. Those comments are appropriate.
Then, to deal with the more specific amendments, we see a difficulty in application when dealing with abusive requests. We are familiar with the mechanism in Quebec, where it has been in effect for years. However, the mechanism determining an abusive request is often linked to the time and effort required to respond to the request. Quebec’s act respecting access to information has a fixed timeframe of a maximum of 30 days, whereas, under the federal act, the timeframe needed to respond to a request can be extended. Therefore, if it is possible to extend the timeframe, at what point does the request become abusive? It will just take more time to process. A new paragraph 6.1(1)(b) comes in clause 6. We agree with the principle of a mechanism to deal with abuse, but I feel that applying it will be difficult technically.
We are in private practice, representing public organizations and third parties. We consider managing third party rights to be a significant issue in the Access to Information Act. First, in general, the act puts third parties in a subordinate position. They lag behind the persons making the requests and the government institution, as if their rights were less important. In the way it is written, section 27 allows a government institution to not notify a third party when documents involving that third party are requested, on the basis of the opinion of the person responsible for access, an opinion that does not always have to be an informed one. Under the principle of the right to be heard, we believe that you should think about the idea of systematically providing notice.
Moreover, I submit to you that it is very often not a matter of government information. The Access to Information Act exists in order to monitor the actions of government institutions. When third parties provide documents on their personal affairs, we move away from the objective of the act. If we then also prevent them from making representations because they are given no notice, we move away from the principles of natural justice and from the way in which the legislation should be applied.
Let us not kid ourselves. The Access to information Act is often used by competitors to obtain privileged market information. We have a lot of files with Health Canada and Transport Canada. There are people who are required to submit confidential documents, technical drawings and internal research and development documents on medications worth millions of dollars. These are large documents and often, competitors will request access to them in order to be able to compete without incurring the expenses. As a result, if it is seen that the notice is not systematic when representations are made on behalf of third parties, we end up with a deficient and prejudicial system that, as I mentioned, is far removed from the objective of the act.
I will make way for Mr. Boucher, who will be able to tell you more about this.
Marc-André Boucher, Associate, Fasken Martineau DuMoulin S.E.N.C.R.L., s.r.l., as an individual: Notice to third parties is a concern for us, and it is often a concern for the people we represent, mostly pharmaceutical companies. The first problem is that the rule of audi alterem partem is broken, meaning the possibility of not being heard because one has not been notified. The second problem is that the person who has not been notified cannot challenge the decision. That means that the very principle of judicial oversight of government decisions is being put in peril.
Mr. Justice Beaudry noted this in one of his decisions. He rightly said that the fact that notice is not mandatory — the notice, that is, in section 27 of the current act — seriously imperils the principle of judicial oversight. If notice is not sent, a person cannot challenge it and therefore, de facto, the decision of the official in the government institution remains immune, because no one can challenge it.
Mr. Aylwin: I would add two final, very technical points. We see no reason to charge fees for access requests, as the Senate committee has previously been told. I understand the idea of a user fee, but, as things stand, it is likely that it will cost the state more to administer and collect those $5 payments. I think that this is more a matter of putting limits on the right to access in cases of abuse, when the volume of access requests has to be managed. California did it with a bill that was passed in June and that will come into force in 2020. The bill says that requests from people asking for access to their files more than once in a 12-month period can be refused. There are other ways of limiting the right of access than through a user fee per request. The bill does not propose cancelling the fees, but many jurisdictions around the world, including Quebec, do not charge fees, and the sky has not fallen. I do not feel it is necessary.
My last point — and let me make the most of the enjoyable time I have before an audience of senators — is that the Access to Information Act does not have the most fortunate drafting in all our legislation. It is drafted very heavily and the bill does not improve it in that respect. For example, and here you may see my true civil law colours, the whole part about proactive disclosure, which takes up 10 to 15 pages, could have been done in two or three pages. The bill deals with various groups to which proactive disclosure applies, but it simply repeats the same provisions for each of those groups.
That is my last comment and I am ready for your questions.
Senator Boisvenu: I will be quite quick, because there are a lot of us. Thank you very much to our guests and our witnesses for this very enriching information.
My first question goes to Mr. Aylwin and Mr. Boucher. When the commissioner came to introduce, or should I say criticize, the bill before the committee, she told us that she did not have a lot of power in terms of having her decisions enforced. She would like the bill to be amended so that her decisions have force and effect. I would like to hear what you have to say about it.
Mr. Boucher: First, we are not opposed to the principle. We feel that it could be a good thing. However, I remember that, in a report produced by a former Justice of the Supreme Court of Canada — I think it was Justice Gonthier, but I could be mistaken — he argued at length — It is also mentioned in Dagg, which is a landmark case in the area of privacy. The commissioner is seen as an ombudsman with a advisory, non-interventionist role.
We are not opposed to the idea of giving the commissioner power, but we must remember that it could influence that ombudsman role because the position would henceforth be more involved and would have to make decisions. It is true, as the commissioner pointed out, that, very often, a commissioner’s role has no teeth. The only powers she has at the moment are powers of recommendation, except in terms of investigations. But commissioners can make recommendations and then sometimes government institutions turn them down. It is not a bad idea…
Senator Boisvenu: Could there be a compromise between the two?
Mr. Aylwin: The power to make orders in the bill is already a good step forward in terms of Federal Court oversight. It will prevent us from falling into the grey area where the commissioner makes a decision and no one is required to move a muscle. The only possible thing was to go to Federal Court for a remedy. The power to make orders will have a significant impact in the future.
Senator Boisvenu: Thank you very much.
Ms. Kerr, Ms. Senft, when the ministers came to talk about the bill, they were very pleased with it. I have seen many criticisms about the bill, which means that a lot of people believe that it is not a major step forward in terms of transparency, particularly as it applies to the offices of ministers and the Prime Minister.
We are told that there will be almost total disclosure, given that a lot of information has already been available on demand since 2006. I am thinking about mandate letters and expense reports, for example.
Should this bill address situations like the one we are seeing in the other place, where a member of the military is asking for access to information held by the Privy Council? In terms of transparency, should we go even further than simply revealing items that seem relatively secondary to me, such as expense reports or mandate letters. Do we have to go as far as to provide information, in a trial, for example, to someone accused of having in his possession information belonging to the Privy Council?
Ms. Kerr: Thank you, senator. That is a good question.
The CBA’s position on that is specifically that while the small steps in terms of proactive disclosure are good first steps and do represent a small step forward in terms of turning what is currently policy around proactive disclosure into a legislative requirement for certain categories of records, the CBA’s position is, quite clearly, that Part 1 of the act should apply to those offices in order to enable applicants to make requests for records that are then treated as access to information requests under the act.
We accept, of course, that parliamentary privilege is a concern and that information and records would, depending on the nature of the request, have to be withheld subject to parliamentary privilege, and there would need to be an appropriate exemption under the act for that. We do have a serious concern with equating proactive disclosure with a right to access, because a right to access, the content of that is going to be determined by the applicant in terms of what they wish to ask for as opposed to the government in terms of what they wish to disclose, which is how proactive disclosure works.
Senator Boisvenu: Ms. Senft?
Ms. Senft: I don’t have further comments on that issue.
Senator Gold: Welcome. I would like to ask two questions to both of our guests on clause 6.1, on vexatious requests. I’ll state both questions, if I may, and then invite you to comment.
Ms. Kerr, in your submission, you seem to have difficulty with the power to refuse a request made if it’s vexatious or in bad faith. We heard from the Information Commissioner that they, and the departments as well, appreciate the power to refuse such requests or complaints, because they sometimes consume an enormous and disproportionate amount of resources.
We understand, as well, that there is a wealth of jurisprudence on what “bad faith” and “vexatious” might mean.
Could you comment more on whether there are any grounds on which you would acknowledge and accept that requests should be refused if they are vexatious or an abuse?
The witnesses from Fasken talked about problems with the application, I believe, because Quebec has a fixed time limit of 30 days, unlike the federal system. The limit will make it more difficult to implement, if I understood you correctly.
Would you have any suggested amendments to the bill that would help to resolve the problem that you have identified?
Ms. Kerr: Thank you, Senator Gold. I think you have given us a very important opportunity to clarify something that is in our written submission.
In our written submission, I think it is suggested that what the CBA is advocating in the current version of the bill that is before you is that under clause 6.1(1), the elimination of the elements where there are large number of records requested and/or where the request is vexatious or made in bad faith, that’s not, in fact, what we are proposing.
The enumeration in the written submission is actually in reference to the first reading version of the bill that was introduced in the House of Commons, and so when we are recommending the removal of 6.1(1)(b) and (c) , what we are referencing are the provisions that say the person has been given access to the record, or the record is available by other means, and where the request is for such a large number of records or necessitates a search that would unreasonably interfere with operations.
We are not actually recommending the removal of the ability to disregard a request on the basis that it is frivolous or vexatious or made in bad faith. We very strongly agree with having the commissioner have oversight and be able to approve circumstances. That is certainly consistent with provincial legislation on the same subject matter.
We are satisfied in terms of the impact that that will have on the ability to make access requests. The threshold that we have seen commissioners apply provincially to frivolous or vexatious requests is actually a very high threshold, as it should be. There have to be clear circumstances that the purpose of the request is not in accordance with the purpose of transparency and accountability under the act, and, in fact, it may have such an impact on the operations of the government institution that they are unable to respond in a timely manner to other applicants’ requests. So for clarification, we’re not actually recommending the removal of what is now 6.1(1)(c).
The Chair: There is jurisprudence on that issue, as you know. The Federal Court has interpreted those terms in decisions that are not that old. If my memory serves me well, it is in recent years that the Federal Court has come forward with a decision whereby they have determined or made more precise the definition of the parameters of what we should be understanding for a vexatious or futile request.
Ms. Kerr: Yes. It is consistent in terms of being a very high threshold. Fortunately, only a very small percentage of requests venture into this territory, but it is an important right to enshrine in the act to enable a government institution to be able to balance their obligations to all requesters.
The Chair: Thank you.
Mr. Aylwin or Mr. Boucher, do you have any answers to Senator Gold’s questions about applying the act? Do you have any suggestions to improve the way it would work?
I’m listening, Senator Gold, when you question.
Senator Gold: Exactly.
The Chair: So which of you has an answer for Senator Gold?
Mr. Aylwin: We were listening too. I just have a small comment about paragraph 6.1(1)(c) that Ms. Kerr just mentioned. In Quebec, the experience is the same: The threshold for a request to be considered vexatious is very high. The modifiers “repetitive” and “systematic” are also used with the access to information legislation. That gives you some clues about the way in which requests could be considered vexatious.
As for paragraph (b), I am grateful for your question because it allows me to talk about another of my pet peeves, the lack of a maximum time limit. We have access to information files that have been hanging around for 10 years. That is no joke; it is not something I have just made up. A colleague who is dealing with this issue has eight boxes in his office. And we are being told in all honesty that there is no upper time limit.
Mr. Boucher: That is the argument of the commissioner’s counsel, who told us chapter and verse that there is no limit. That is his argument. If it takes 10 years, you know the saying well: “Justice delayed is justice denied.” He is told that it makes no sense, and the answer we get is that the act does not set a time limit.
Mr. Aylwin: So, if you want a very practical recommendation, an upper time limit must be set. That also solves the problem I raised with paragraph (b). When you have an upper time limit, you can judge whether the request is abusive or not in terms of that limit and of the resources required. The limit in Quebec is 20 days, with a possible 10-day extension. That gives people a benchmark that tells them when they will receive their news. I understand that, when there are consultations with third parties, the timeframe gets longer, of course.
In California, in privacy issues, the timeframe has been set from 45 to 120 days, I believe, depending on the complexity of the file. I feel that solution is perfectly warranted, not only to resolve the question of abusive requests, but also to give some meaning to the Access to Information Act. There must be a limit to the response time.
Senator Pratte: I have two questions. The first is to Ms. Kerr or Ms. Senft regarding judicial independence. I would like to you elaborate on sections 90.22 and 90.23, which allow the registrar or chief administrative commissioner to not publish proactively information on judges’ expenses if they believe that it would interfere with judicial independence or compromise the security of persons, infrastructure or good.
When I read it, it seems to me to solve the problem, but apparently I believe that you don’t think so.
I would like to ask Mr. Boucher a question about making orders. We have heard a number of people, including the Information Commissioner, tell us that, basically, the order may not bring about the desired effect. This is because the institution can essentially sit on its hands and do nothing when it receives the order, unless the Information Commissioner goes to the Federal Court to get a mandamus, which is not necessarily easy to do, as it has been explained to me. You seem to have a lot of faith in the order established in the bill, and I would like to know why.
Ms. Senft: Thank you for the opportunity to respond more specifically to that issue.
With respect to section 90.22, which is purporting to then give the authority to decide when disclosure of some particular piece of information may affect judicial independence, we agree with the Canadian Superior Courts Judges Association that that actually is a glaring constitutional defect — that section specifically. I appreciate your question.
I am wondering if it might be helpful to give you an analogy, if you will. Sometimes I like to give them. It might help. If you think about judges having dinner in a home, and saying, “Judicial independence means nobody is allowed to understand what the judges are eating, and nobody needs to be able to look into the fridges and see what they are buying for groceries to make the meals,” that’s the cloak of judicial independence.
But what we’re going to do is say that the person who’s doing the Costco run — if I can put it in the vernacular — we will go to them and ask them, “What are you purchasing that goes into the fridge? What are you purchasing for individual judges? Which judge wants this particular item? Which judge is spending more on this particular item?”
You’re giving the authority to decide which of those items may impact judicial independence to the person who has nothing to do with the judiciary. They are supporting the judiciary, but they are not members of the judiciary. We have in Canada, as we all appreciate, separate branches of government. It’s critical not to start eroding judicial independence. It might look on paper as if this solves the problem. No, it’s giving decisions about what may impact judicial independence to parties that are members of different branches of the government. It’s completely inappropriate. We agree with the submissions of the Canadian Superior Court Judges Association on that point.
I don’t know if that helps. I was trying to think of better and other analogies. It’s somewhat difficult to find something that is on all fours with the situation. When you put it that way, it seems astonishing that somebody might purport to give power to the person who is putting what is in the fridge — although we say we can’t ask them what they are having for dinner or ask what they are buying, let’s go to the person buying the groceries and ask them. It’s giving that person the authority to say, “Okay, no, I’m not going to tell you that piece of what you’re asking, because that might erode judicial independence,” yet the person responding is not a judge or a member of the judiciary.
The Chair: Ms. Kerr?
Ms. Kerr: I want to add, senator, in terms of the question that you’re asking around whether the proactive disclosure scheme already allows for that information to be withheld if judicial independence is impugned. Given that the rationale for proactive disclosure is enhancing transparency, if, in practice, there is going to be a category of records that will almost always be withheld, then you’re setting up, in some respects, the judiciary and the organizations that support the judiciary to look like they are being non-transparent when they are engaged in an appropriate exercise of the discretion they have been given.
I do caution about including categories in a proactive disclosure schedule, as it were, that, more often than not, based on the analysis of those who have the responsibility to determine if judicial independence is impugned, they are going to decide that it is and always withhold that information, because I think we’re setting people up to look non-transparent.
The Chair: Could you add to your recommendation — I think it’s recommendation 5.2 of your brief, whereby you suggest an approach that seems to meet the criteria you have just explained. If I can take your brief — it’s on page 8 of your brief. It’s recommendation 5.8, where you suggest that there be periodic reporting by each court should be in the aggregate form. Could you expand more on that? It would meet some of the concerns raised by Senator Pratte. You’re not opposed to some form of disclosure. If I understand your brief well — I read it before the meeting — in my opinion, it is a medium term to balance the need for transparency and, on the other hand, the protection of the administration of the court by the court themselves.
Could you expand more, Ms. Senft?
Ms. Senft: Our first position is, fundamentally, that we believe the judiciary and the courts should be exempt. In the alternative, if there is a will to find a way to satisfy competing interests, if you will, yes, public and periodic reporting by each court could achieve some of what the legislation is getting after, but only if it’s in the aggregate. We are concerned very much — and I appreciate your comments. I have been reading some of the previous submissions that have been made and discussions — there is an understanding of the concern on the part of various members of this committee as to how problematic it could be if judges’ expenses were starting to be available for a number of reasons. That would be a compromise of sorts.
Any decisions, though, with respect to what is reported, how it’s reported, should not belong with somebody who is not in the judiciary, plain and simple — should not be.
The Chair: Thank you. Thank you for that aspect of your answer, because it helps to figure out the right balance.
Mr. Aylwin: Thank you for your question, Senator Pratte. You have to understand that we are talking about a power to recommend, to which we are now adding a power to make orders.
According to the Information Commissioner’s comment, that is not enough and it has no teeth. I understand that the assumption is, with an order, unless it becomes an issue before the Federal Court, government institutions may not comply with the orders from the Information Commissioner. I hope that she is wrong. I like to believe that government institutions will respect orders from the Access to Information Commission.
The only remaining technical issue — I think Senator Boisvenu brought it up — is to determine whether there is a process of certification or ratification that give the orders force and effect. I have no objection to that process. Our comment dealt with going from recommendation to order — with which we are in full agreement. But if you believe that, at a technical level, government institutions will not respect the orders, do what you have to do to make sure that they must.
Mr. Boucher: I would like to quickly add that the example of the order, as currently designed, could… Let me draw an analogy, it’s sort of like when you go to a superior court to seek a declaratory judgment: It’s about declaring rights only. A declaratory judgment is not an injunction. In general, the parties will agree that this is the state of the law. Now, of course, the commissioner does not have the same status or legal or moral authority as a superior court. That is the end of the analogy. We hope that the heads of government institutions will, at the very least, have some form of respect for this order.
The Chair: Thank you for your answer.
Senator Lankin: I have two questions. Both of them arise from the ABA brief. The first is with respect to the recommendation to expand the scope of the legislation to cover PMO and ministers’ offices, and the other is with respect to the imposition of fees and the waiver of fees.
With respect to the expansion of the scope, in your brief, although it’s under the section on solicitor-client privilege, you quote the Supreme Court as saying some records may be exempt from disclosure from government because it would impact the proper functioning of affected institutions. You talked about access to these informations in the PMO and ministers’ offices subject to parliamentary privilege.
I was wondering if you could give us some examples of what you think might be requested, and what would be covered in parliamentary privilege and what wouldn’t be. And the question of cabinet confidence, if you could comment on that.
With respect to fees, section 11(1) of the Access to Information Act sets out the maximum — the fee has to be less than $25 — and 11(6) sets out the waiver. Section 11(1) provides for the regulation-making power for the actual fee itself. Would you support or would it be satisfactory to address your concerns if section 11(6), the waiver, also set out a regulatory power? And then there’s a corresponding provision in section 71 that would allow for regulations that set out criteria to be considered in the waiving of fees.
Ms. Kerr: Thank you, senator. With respect to specific examples of requests that could be made, I will look to Ms. Senft, because I’m not thinking of a specific one off the top of my head. An example was raised, I believe, in this committee’s proceedings with the Minister of Democratic Institutions around correspondence between ministers on a particular issue. Currently, that would not be captured by the categories of records that are listed in Part 2 of the act for ministers’ offices. However, expanding the scope of Part 1 would at least enable that request to be made. And if it’s inappropriate, not only with respect to parliamentary privilege but with any of the other applicable exemptions under the act, information could properly be withheld.
I would have to go away and think about specific examples for you of things that actually could be disclosed.
What I can say is that in the jurisdiction that I am most familiar with, which is British Columbia, the premier’s office, for example, is subject to the access to information provisions under the Freedom of Information and Protection of Privacy Act in that province.
Quite often what is most frequently requested of that office, as well as all ministers’ offices, are their calendars. Of course, there can be information in those calendars, and perhaps that’s a specific example.
The Chair: Do you mean agenda when you say “calendar”?
Ms. Kerr: Yes. What it is most referred to when you see it in British Columbia is “the calendars.” Yes, the premier’s or the ministers’ agendas, or just a list of their meetings, their schedule. There’s frequently information that is going to be withheld from those schedules, but the frequency with which those particular records are requested has actually caused the Government of British Columbia to add that to their proactive disclosure list. Proactive disclosure is most often, particularly in the early stages, determined with reference to what are the most requested records. If we’re getting the same request every week for the same information and we’re having to release it, perhaps we should just proactively release it. That’s the answer to the first question.
Senator Lankin: The reason that I ask is always wanting to know the problem that we’re trying to solve for. I understand the general transparency arguments writ large, but given there are so many categories, like cabinet confidence and other sorts of things, I wanted to have a sense of that. That’s helpful. And maybe we could look into that in other jurisdictions and see what has transpired since those provisions had been brought into the law.
Ms. Senft: Before you get to the second question, if I could provide my own comments.
You pointed out that in our brief it is contained in the section relating to solicitor-client privilege. I am looking specifically at pages 11 and 12 of our submission from May. There is specific commentary in there that relates to a decision in 2005 in terms of a Federal Court of Appeal case.
The Attorney General in that case argued that subsection 36(2) should be read restrictively and permit interference with privilege only to the extent absolutely necessary in order to achieve the ends sought by the act. The Federal Court of Appeal agreed and talked about how there is a strong expectation of confidentiality with respect to legal advice memorandums.
Parliament didn’t intend that a government institution would be without the benefit of getting its own legal advice. Sometimes, as solicitors, if we work in-house — I say the royal “we” — we know that if we’re working, for example, for an insurance company, that’s our client. When you’re a government lawyer — and I’ve spoken to government lawyers at some length about the kinds of issues they face — you have a client. Your client department is giving you a question to give a legal opinion on. You have a client, as anyone else. That lawyer is subject to the same code of professional conduct that any other lawyer in private practice is subject to, which contains rules, and there are very certain exceptions when you can breach the rule relating to confidentiality, which is an ethical rule even broader than the solicitor-client privilege rule. So those lawyers are themselves subject to that.
That’s why that piece of it is in that part of our brief. That is certainly the type of situation we’re contemplating. You say: What’s the problem we’re trying to solve? Indeed, there’s no reason why there can’t be a robust access to information regime, and it doesn’t have to be at the expense of protections that should be afforded to fundamental principles of our justice system: solicitor-client privilege, judicial independence. They don’t have to be either/or. They can happily co-exist.
Senator Lankin: That’s not what I was asking about. I’m asking more about —
Ms. Senft: The types of information. Certainly legal memorandums that give advice would be the type of information.
Senator Lankin: And your definition of parliamentary privilege versus other things, like cabinet confidence, et cetera — I’m sorry, I don’t want to take up more time. There was a second question about fees and waiver of fees.
Ms. Kerr: Yes, if I may clarify that I understand what your question was, Madam Senator, would we be satisfied essentially if the fees were maintained in section 7 of the act, the ability to charge fees, but there was specific fee-waiver criteria that were contemplated?
Senator Lankin: Well, I think you said you want the fees gone.
Ms. Kerr: Yes.
Senator Lankin: But if the fees are there, there should be criteria for the waiver. I was exploring how that might be addressed, noting that the fee in the bill is only a maximum and that the actual fee is set in regulation, and that regulation-making power is referred to in that section, and then the general section 71. Would that same kind of approach make sense for how you document the criteria for waiving fees?
Ms. Kerr: I believe that it would be an option. In terms of waiving the application fee, the CBA feels it serves no useful purpose. With respect to the retention of fees relating to the processing and reproduction of records that are responsive to a request, I do understand why the government is wanting to reserve that for the time being. There are many things going on, in terms of the way that the nature of records are changing and the nature of requests that are being made, such that information is contained in databases more often than there are physical records in existence. Sometimes it’s incredibly expensive, with the technology that’s available, to produce a record from machine-readable format.
I do understand the rationale, but it should not stand as an impediment to access. What we were proposing, if fees are to be retained, is something akin to what is in the British Columbia legislation, where there are specific criteria to be considered in accordance with a request for a fee waiver. And if the public body, as it’s called in British Columbia, does not accept the fee waiver, that is also subject to a complaint that can be made to the Information and Privacy Commissioner in that province, based on the criteria that are set out in the act.
Senator Batters: Thank you very much to all of you for being here. My question is for Mr. Aylwin.
Mr. Aylwin, in your opening statement, you briefly referenced that you found the section on vexatious requests to be problematic. Section 6.1(1)(c) of the bill provides that the head of a government institution can refuse to grant access to information if, in their opinion, “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.”
When Minister Scott Brison appeared before our Legal Committee recently, I asked him to provide clarification on that section and, quite frankly, he refused to do so. Mr. Aylwin, I wonder if you find it problematic that the minister who is responsible for this bill, and who comes to this committee to explain it to us and to Canadians, won’t provide clarification on this issue? Now, I recognize that there is jurisprudence on this particular area, but Minister Brison didn’t even mention any of that when he appeared in front of us.
Also, in this respect, an interpretation of this particular section that is too restrictive could unduly limit the ability of Canadians to access information in an appropriate way.
Mr. Aylwin: Senator, thank you for your question. I will not comment on Minister Brison’s work, but I want to correct one thing. My comment was on paragraph (b). In terms of the difficulty of drafting, paragraph (b) is difficult to apply because of the issue of time limits and the fact that requests cannot be processed within the time limit, which may be extended in any case.
As for paragraph (c), I am sure that it does not unduly limit Canadians’ right of access to information. Terms such as “vexatious,” “bad faith” and “abuse of the right” have been in legislation for years. They are systematically applied by the courts in a limited way. I have never seen any abuse of the concept of “abuse” by the courts. They are very conservative in that regard. They know that we are taking away an individual’s right. In applying all the provisions I know that use that language, it is quite exceptional for requests to be accepted, including access to information requests. In my view, it is simply a matter of restoring a balance to avoid having someone work 2,000 hours to process a request for access to similar documents in many different organizations. In my opinion, this is a limit that we can afford to impose in the act.
Mr. Boucher: Especially since the courts have traditionally interpreted the Access to Information Act very broadly and rightly, because it is a quasi-constitutional act. The Supreme Court and the Federal Court of Appeal have reiterated this: It must be interpreted generously. So this generous interpretation also mitigates the risks of an overly rigid interpretation.
Mr. Aylwin: Rest assured, we often have this conversation with our clients, who see opportunities in the legislation. We explain that it is not really applicable in their case, because it is very rare.
Senator Batters: I’m certainly not concerned when the courts go to consider these types of sections, but in this particular case, it would be government institution officials that are considering these types of matters, and it might be quite some time or many of these requests may never get to the level of a court. So for that reason, I think it’s important that there is appropriate clarification. A minister appearing before a Senate committee is the perfect time to provide that because oftentimes the people who may have to interpret these types of things later will refer back to those speeches, to those comments. I’m wondering if there’s any particular clarification that you think would be appropriate for someone in that type of position in order to provide these types of information appropriately to government officials.
Mr. Aylwin: In Quebec, it is important to understand that it is the same mechanism. Public servants apply those provisions. We have a number of government institutions as clients. We are in contact with people who work in cities and government institutions, and they come to us to ask whether it applies. We have this discussion with them and, 98 per cent of the time, they are told that it does not apply. Under the Access to Information Act, there is a remedy. If a public servant decides to apply that provision, the Information Commissioner can be called upon. In Quebec, the Commission d’accès à l’information can be called upon too. I am not aware of any decisions in which the Commission d’accès à l’information has criticized an agency for invoking that provision. I don’t think there’s an overload issue right now. As a lawyer, I do not feel helpless, because the case law is quite extensive on the use of those terms to apply guidelines.
Senator Carignan: I wonder whether the proposal to delete clause 15 will actually increase the protection of professional secrecy. I understand that the commissioner is being told that he will have access to determine whether the public servant can refuse. However, it is a little vague in the current legislation. The courts have established the principle of protection. If clause 15 is removed, it bothers me that section 23 simply states that “the head of an institution may refuse to disclose” and that they are not required to do so, but simply have the discretion to do so. Clearly, they are required to refuse when it comes to personal information. Section 23 covers professional secrecy and related privileges. In my opinion, related privileges include journalistic sources.
Should section 23 not also be amended to indicate that he is required to refuse? Then, we could provide a way to balance rights and find a mechanism for communication in certain situations. Shouldn’t we completely rethink this mechanism?
Ms. Senft: I want to make sure I understand your question, senator. With respect to your question about clause 15 and our recommendation that it be removed, is your question: Does removing it somehow harm what protections would otherwise exist under the law to protect solicitor-client privilege?
Senator Carignan: I am not convinced that removing clause 15 is sufficient to achieve the objective of ensuring full protection of professional secrecy or other privileges. I interpret the other privileges as including journalistic sources, since that’s another privilege protected under the Evidence Act.
Is it sufficient to simply remove clause 15? Should section 23 not also be amended to include the obligation to refuse, as in the case of personal information, even if it means providing for another mechanism to balance rights?
Ms. Senft: With respect to the privilege question, to be clear, we’re talking about the amendment, which my understanding is that the amendment added the words “. . . solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege . . . .” That’s what we’re saying, remove that. The bill adds that.
Senator Carignan: I know.
Ms. Senft: We’re saying if you’re going to try to compel production of privileged of information, there are very clear requirements set out by the courts, and simply adding the phrase to the act does not accomplish the roadmap set out by the Supreme Court.
The Supreme Court has set various hurdles before you can get to a forest, if I can use an analogy. It’s a very dense forest. You have to follow the roadmap, and the roadmap has several steps. You can’t put away the roadmap after following the first part of it and say, “I hope we’re going to find our way to that forest.”
Removing that new phrase, we believe, is necessary because —
Senator Carignan: I understand that it’s necessary. My question is: Is it enough?
Ms. Senft: The CBA has taken the position that if we remove that wording, we still have, at present, the courts, the common law, that guides how these kinds of situations should be addressed. If you take away the compellability portion of it, that doesn’t mean that a government institution or agency can decide — of course they can waive privilege. It’s the client’s privilege to waive.
I’m sorry, I think it was you who asked what problem we are trying to solve. What is the problem? The Information Commissioner’s own report from 2014, our initial brief to the written submission to the House of Commons, talks about how only 3.07 per cent of requests for access were refused on the basis of solicitor-client privilege. That is a very small percentage.
One of the hurdles that the Supreme Court has set out in its roadmap, if you will, is that it has to be absolutely necessary. Where is the evidence of that, even by the commissioner’s own statistics, 3.07 per cent.
If you haven’t had an opportunity already, the barreau has also submitted a brief from June citing that same statistic and saying, “What is the problem? Why is it necessary?”
On top of that, not only do you have a small percentage of matters where requests were denied for that specific purpose, what’s the remedy? You have a remedy. You can go to court and ask a judge, who is completely independent, to make a ruling on that.
Again, how can you meet the hurdle of it being absolutely necessary when you don’t have the evidence from the commissioner’s own office, and you have a remedy, currently, that fits quite nicely in terms of protecting fundamental principles that are core to the rule of law, frankly?
Senator Carignan: Do you think that clause 73, as passed by Parliament in Bill C-51, which requires the Minister of Justice to table a statement related to the Charter and a statement that sets out potential effects of the bill or the proposed legislation on the rights and freedoms that are guaranteed by the Charter, is a form of waiver of solicitor-client privilege on legal opinions that would affect the constitutionality of a law?
The Chair: I will leave the witness to answer that, but as you know, they have not been informed they would be questioned on Bill C-51 today.
Senator Carignan: Since we are talking about professional secrecy and waiver, I would like to take this opportunity to ask the question.
It is an example I am giving to ask the question whether simply removing section 36.2 is sufficient to protect professional secrecy. Shouldn’t there be other mechanisms?
Ms. Senft: I’m not in a position to respond to the bill in the way that you’re referencing at this point. I’m happy to look at it after I leave and provide you, on behalf of the bar association, a response to that specific question.
Again, to clarify, we’re talking about removing those additional words that were put in relating specifically to privilege and the comparable concept in Quebec, the professional secrecy of advocates and notaries and litigation privilege. That’s what we’re talking about.
Senator Carignan: I think the brief may contain a typo. At the end, Recommendation No. 6 refers to removing clauses 15 and 30 from Bill C-58. For clause 15, everything is fine. However, I have difficulty understanding why clause 30 should be removed.
Ms. Senft: What page are you on?
The Chair: It’s on page 14 of your brief.
Senator Carignan: It’s your Recommendation No. 6.
Ms. Senft: It says 50 on my brief.
Senator Carignan: Are those clauses 15 and 30? What is it in English?
The Chair: On the English version, on page 14, recommendation 6 on the bottom of the page, it states: “Remove clauses 15 and 30 of Bill C-58.”
Then on page 15, that repeats all the recommendations in a sequence. It’s exactly the same on page 15, recommendation 6: “Remove clauses 15 and 30 of the Bill C-58.”
Senator Carignan: Fifteen I understand. Thirty, I don’t understand why.
Ms. Senft: I believe, Mr. Chair, what you’re saying is that in your version in your hands, as well as in mine, from the CBA, dated May 2018 — if you look at your cover page.
The Chair: It’s May 2018. Yes, it is.
Ms. Senft: My version says section 50, not section 30.
Senator Carignan: Okay.
The Chair: It’s a typing mistake.
Ms. Senft: It’s 50.
Senator Carignan: Thank you.
Ms. Senft: That would be a typo if that’s what you have in front of you, and the intent is to make sure that the same recommendation we’re making with respect to the Access to Information Act also applies to the Privacy Commissioner. That’s the intention.
The Chair: In your opinion, is clause 15(2) truly reflective of the status of the law as interpreted by the Supreme Court in relation to solicitor-client privilege?
Ms. Senft: Is it reflective of the current requirements as set out by the Supreme Court? No, not in our opinion.
The Chair: Not in your opinion?
Ms. Senft: No.
The Chair: So in your opinion, it is contrary to the roadmap that the Supreme Court has established in relation to the definition or the scope of the solicitor-client privilege.
Ms. Senft: That’s exactly right. There is no evidence that there’s an absolute need to go this far. If you look at the current wording, there has been no language inserted to fetter this broad discretion and power that is being given; nothing.
If you recall, when we gave our brief, and when I was trying to summarize orally, the most important salient point is that there are a number of requirements and hurdles to be met. One of them is after you get over the absolutely necessary, it must impair as little as possible. There is not even any mention in here of tying the commissioner’s hands in any way, shape or form. In a number of respects, no, the CBA has taken the position, this does not meet the scrutiny that would be required.
The Chair: Thank you.
Senator McCoy: Thank you all for being here. I have two questions. The first is for our friends from Montreal, and then second for the CBA. The first question is on the deadlines that you raised earlier in a slightly different context. You were talking about making a mandatory notice to third parties. I want to turn your attention to a little broader question.
I take it you have some personal experience working with this act in practice. You say that your next-door neighbour in your office has eight boxes of information requests that are still waiting unanswered after 10 years.
The fact of the matter is the current act allows departments and agencies to make an extension. There is no time limit on that, so they say, “I’m sorry, I can’t meet the 30-day limit, but I can tell you that we will respond in 324 days.” And there is no comeback, you have to come back and sit and wait for a year or two. Some of our senators have personal experience and they are still waiting for a response after 10 years.
I’m wondering if the examples you gave us of California and Quebec — and perhaps you have one or two other examples — would be useful for us to look at. I invite your response. And tonight I’m also wondering if you could share copies of examples where there are limits on that kind of discretion. It could be very helpful in trying to increase the turnaround time for these responses. I’ll let you answer and then I’ll put my other question, or would you prefer I put my other —
The Chair: I think we should stay on this one because it’s a precise question.
Mr. Aylwin: As for time limits, Quebec’s mechanism — the one I know best — would represent a fundamental change in approach if applied at the federal level. We have a time limit of 20 days, which can be extended by a maximum of 10 days, to make an access to information request.
Senator McCoy: Twenty years? Twenty days?
Mr. Aylwin: The time limit is 20 days. It’s not years or months, it’s days. It is then determined whether a request is abusive with relation to the ability to respond within 30 days. An access to information request must not lie dormant in a government institution, it must come in and go out. Then, we have to determine whether we have a dispute, if restrictions are applicable. So the mechanism works well. The number of access to information requests to be exempted from the obligation to respond in Quebec is minimal for all access to information records.
This may seem like an impressive change in terms of time limits, because under federal legislation, the time limit can be extended as desired. However, if the time limit is extended by more than 30 days, the Office of the Information Commissioner must be notified. What is the advantage of that? I have no idea. It does not speed up the process, and I do not think managing all extension requests is the commissioner’s priority.
The Quebec system, which has been in place since 1982, has nevertheless proven its worth. There is an obligation to collaborate between access to information requesters and organizations, thereby ensuring that the subject matter of the requests is addressed. As a result, we know that the requesters will not bite off for much and that the institutions will process the requests within 30 days so that the requesters can get answers to their questions.
Mr. Boucher: In the Air Transat case, which is now public, we won at the trial court. It took 10 years. For 10 years, the commissioner kept saying that he was conducting the investigation. In this case, we were not representing the access to information requester, but the third party, Air Transat. However, the damage to the company was very serious. We could no longer even defend ourselves in the Federal Court because we could no longer find the witnesses. We had a hard time establishing our evidence because we were no longer able to find the evidence 10 years later. So, this example illustrates the abuse that can be caused. The most surprising thing, I repeat, is that the Information Commissioner, or the commissioner’s lawyer, said, “We had the right to wait 10 years”.
So that’s a very good example.
Senator McCoy: Would you send us a copy of the Quebec legislation, or at least the section in your act, so that we have it on record as a precedent?
The Chair: I think it’s an easy access. The committee can provide that to you.
Senator McCoy: That would be even better. My second question —
The Chair: Just a second, Senator McCoy. Senator Miville-Dechêne has a supplementary question on the same subject, if you will allow her before we change the subject.
Senator McCoy: Of course.
Senator Miville-Dechêne: I’m replacing someone on this committee. So I do not claim to know the ins and outs of the issue. However, I am a little wary of your comment that Quebec’s legislation works very well. Given that I am sitting on a Senate committee — I have previously been the person in the public service being asked for information. I had a lot of tools to delay the transmission of information. The legislation is highly criticized by journalists, because it is full of exceptions.
I would like to make a distinction on an issue that I’m more versed on. You’re talking about the clients’ point of view, but this piece of legislation is riddled with holes in terms of delays in providing information.
The Chair: Perhaps you can make a comment very quickly.
Mr. Aylwin: I am not saying that there are no issues in Quebec. We must try to get the best out of each of the pieces of legislation we apply in Quebec and Canada. The main issue in Quebec is that once you have the answer after 30 days — or a little longer, say 45 days, 60 days, if third parties need to be contacted — The point is that it is relatively short. There is a review process before the Commission d’accès à l’information, but it may take three years to get a hearing date. The problem is not the access mechanism but the review mechanism. The time lines you mentioned are essentially there. Once there’s a partial or total refusal, the commission does not always have the resources to process cases quickly. I agree that some resources were added in the spring. Commissioners have been appointed. There was no difference on the very day of their appointment, but we hope that this will reduce the delays.
As for the nature of the exceptions in the Access to Information Act, we have not discussed it today.
As you may know, a bill was introduced before the dissolution of the National Assembly. Some stakeholders are calling for a new commission, much like the Paré commission, which founded the Access to Information Act in the early 1980s, to review the nature of the exceptions. I am not saying that it should not be done in Quebec. I’m really going by the technical, mechanical aspect. In terms of processing times, we are achieving something in Quebec that does not exist at the federal level.
Senator McCoy: To the Canadian Bar Association, I’m pleased to see that you have singled out the review process for comment. We haven’t given you an opportunity yet this evening to expand upon that, if you wish to talk a little bit more about parliamentary review, and why you see that as an advantage or preferential approach, rather the ministerial review, which is now mandated into the bill.
Ms. Kerr: Thank you, senator. We do understand the President of the Treasury Board’s perspective, for example, that even if there is a ministerial review, it would still be required to be reported to the house, and that the house could choose at that point to conduct a review.
With our concern about which type of review would be selected, perhaps we could trace it back to how Bill C-58 was introduced in the first place. I know that this committee has asked, of both the Privacy Commissioner and the Information Commissioner, if they were consulted in advance of Bill C-58 being introduced for first reading and the answer was “no.” Primarily, the CBA’s concern is that there should be a fulsome consultation that enables all different types of stakeholders who have an interest in the access regime. And as we know, Bill C-58 is intended to be phase one of a modernization over time of the Access to Information Act.
The CBA and many other stakeholders, I’m certain, would like to have input on what should comprise phase two, and also that there would then be consistency with equivalent provincial legislation that requires periodic review of freedom of information legislation, generally every five years. That is generally done by an all-party legislative committee and not at the ministerial level.
The Chair: Thank you.
Senator McCoy: I have other questions; I’ll go on second round.
The Chair: Yes, certainly senator. You’re most welcome.
Senator Dalphond: I have a few quick questions. This one is first for our friends in Montreal. In the Quebec legislation, I understand that the system provides for an automatic order. In practice, are there any cases of non-compliance with the commissioner’s order? If so, what is the procedure? I assume that the legislation is silent on this possibility, which is contrary to the spirit of the law.
Mr. Aylwin: The answer is no. I do not know of any cases of non-compliance with the decisions. There are two frameworks that give jurisdiction to the Commission d’accès à l’information. There is a review of disagreements in the case of a person requesting their personal file, and there is a request for a review, a request for access, when a person is not satisfied with the refusal. It may also be a third party challenging the disclosure of the information, as the rights of third parties are always a consideration.
The Commission d’accès à l’information issues a reasoned decision, which resembles a judgment, with its conclusions, and orders the agency to disclose specific information. A right of appeal is provided for in the Court of Québec. I am not aware of any precedent where a public body has not complied with an administrative judgment, as you reminded us in your Court of Appeal decision. Administrative judges make the decisions, and I am not aware of any case of non-compliance.
Senator Dalphond: My second question is about professional secrecy, still in Quebec legislation. When we talk about professional secrecy, I assume it is the secrecy that belongs to the government agency or department concerned. We are not talking about the professional secrecy of someone who has contacted the department. I understand that there is concern, but if the minister makes the information public, he waives the professional secrecy, since it belongs to the client. If the department or agency refuses to disclose the document on the basis of professional secrecy, I assume that the Commission d’accès à l’information makes the decision, not a judge.
Mr. Aylwin: This is correct. There was a debate in Quebec about whether the Commissioner could access the information, as was the case at the federal level. I don’t remember the name of the decision, but the matter was decided on appeal and judicial review, to indicate that the Quebec access to information commission could review the documents to determine whether there was solicitor-client privilege.
We are of course part of a judicial body and the situation isn’t the same. This goes back to the comment I made initially. Our commissioners are lawyers, in addition to being appointed by the National Assembly, which makes them administrative judges. We therefore have a system that offers guarantees to protect solicitor-client privilege.
The Chair: Do you have any other questions?
Senator Dalphond: I have a question for the Canadian Bar Association.
My question to the CBA representative is about Part 2 of the act that deals with proactive disclosure. I do not see in your memorandum any comments about the fact that it’s based essentially on honour. It’s an honour system. It’s the department or agency that has to comply with it because the law provides for it, but there is no mechanism to review on an annual basis if the department has complied half of the time, all the time, or never. Have you looked at this?
First, is it the first time we have had a proactive system with no kind of check to make sure that there is compliance, to your knowledge? Or is there a way we could have some compliance or review by an outsider that comes once a year, and says, “I looked at this department. Department X has provided 20,000 documents on the proactive things. And the next department, which is twice as big, has provided 500. Maybe there is a problem.”
There are ways we can see whether or not there is compliance from the departments. I don’t know if you have thought about that or if you have some insight or suggestions to ensure that the honour system is honoured, not in the breach?
Ms. Kerr: Thank you, Senator Dalphond. We certainly have taken note of the fact that there is no oversight for the Information Commissioner in Part 2 of the act, so I think you’re correct. It is an honour system that is currently contemplated. I don’t know that the CBA has turned its mind specifically to what the ideal oversight would be, and whether or not that should be the Information Commissioner or some other body.
I think it’s fair to say that, to the extent that the obligations are going to be enshrined in legislation, there should be some mechanism to oversee whether or not those obligations are being met.
Again, in British Columbia, I can give you an example that there are obligations. They are not to the level of specificity of the lists of records that are contemplated in Bill C-58, but there are obligations, both for ministries and for public bodies in the broader public sector, to designate categories of records that they will make proactively available without a request. And at present, the Office of the Information and Privacy Commissioner in British Columbia is conducting a review on his own initiative of the manner in which those obligations are being complied with. I’m referring to sections 70 to 71.1 in the B.C. legislation, the Freedom of Information and Protection of Privacy Act.
That review is ongoing. I happen to know about it because I represent a public body that was asked to provide information.
I think that aside from the lists that have been provided in Bill C-58, of course there is always the ability on any government institution to proactively disclose beyond that, and it is difficult to go beyond I think the lists that are included in the legislation, at least in the first go round, because all government institutions are different. They are going to have their own kinds of records. So it’s difficult to say across the board, everyone will have this type of document and everyone will disclose it. But certainly there is an example of another jurisdiction where the commissioner does have the ability to inquire and to make a public report on that.
Senator Boisvenu: I’ll keep it to one question, which is for Mr. Boucher and Mr. Aylwin. At the outset, you seemed to be saying that the delays are one of the major problems to be addressed in this bill. Delays of one year, two years, three years are not acceptable for a public service. Last week, an independent senator asked Minister Gould what the next step in modernization would be once this bill is passed. The minister mentioned improving delays and providing more effective measures, which I believe is the fundamental problem today. If we miss the objective in terms of delays and access to information, we will have the same problem in five years’ time.
Mr. Aylwin: We agree with you, Senator. You touched on it earlier. Honestly, I don’t care what you eat. We talked about aggregate data for the functioning of certain organizations. This may satisfy some curiosities. In my opinion, the issue of delays is much more fundamental in the context of the application of the act.
Mr. Boucher: It is important to understand that legislation is applied — perhaps not immediately — but it is implemented within a reasonable time. If I give you a right, but I tell you that it won’t come into effect for five or 10 years, it becomes a denial of justice.
Mr. Aylwin: We accept this situation for the Access to Information Act, but we would never accept it for the Criminal Code. I don’t understand how delays cannot be a priority concern.
Senator Boisvenu: Thank you very much.
The Chair: Even in civil law.
The Chair: Second round. Again I’m looking at the clock.
Senator McCoy: I’m going to read very short sentences from a document that is on the government’s website. It is under open.canada.ca. As you know, they are proud of that initiative. It is composed of a number of different elements. But commitment number one, reporting period ending for the 12-month period ending June 30, 2017, by the lead implementing departments, which were the Treasury Board Secretariat, Justice and Privy Council Office. They say their commitment is to move forward on the first round of concrete proposals, which we have heard. How will the commitment contribute to solve the public problem? The answer, first bullet:
Making government data and information open by default in formats that are modern and easy to use.
I have a supplementary question to this. First let me ask all of our witnesses, do you think that Bill C-58 makes government data and information open by default?
Ms. Kerr: Thank you, Senator McCoy. I think, as I said in my opening remarks, Bill C-58 represents a small first step in that now this information that is being listed in Part 2 for each of the entities, by and large, that information is already being made available, but it’s being made available pursuant to policy. I do understand, with respect to proactive disclosure, that there are some resource considerations that do need to be taken into account; and in particular, the need to have appropriate translation of any documents that are proactively disclosed. If, for example, the original document is in English, it cannot be proactively disclosed by the Government of Canada unless it is translated also into French under the Official Languages Act.
So there are some resource implications that do have to be considered. I think the CBA’s hope certainly is that proactive disclosure will be expanded and will continue to make further steps on the path that has been started down, so that with respect to the information that is proactively disclosed, there is no need to go through the access to information process.
The other thing that proactive disclosure can achieve is actually I think that there is a school of thought that would say that that should reduce the number of access requests that are made. That can in part by true. The flip side can also be true, which is the information that is proactively disclosed, and this has been seen in certain jurisdictions, can actually lead to additional access requests being made because it is throwing back the curtain on information that was not previously publicly available and informs citizens to the extent that they can make more pointed access to information questions. We consider that to be a good thing.
The Chair: Do you want to comment quickly? Because I’m looking at the clock, and we’re running out of time.
Senator McCoy: I have a quick supplementary question.
The Chair: Very quick supplementary question, very quick.
Senator McCoy: The second bullet in the commitment here, I’m sure you’re aware, the government said as of June 30, 2017, that they would eliminate all fees except for the initial $5 filing fee. So we have heard your position that they all fees should be waived, but I haven’t heard you say that we should ask the government to stand by its commitment. I’m giving you the opportunity to repeat your position, perhaps.
Ms. Kerr: Thank you senator. That is, in fact, our position, and we do understand that by way of policy, the Treasury Board has directed government institutions at present not to charge anything other than the application fee. We would also like to see the application fee dispensed with. I’m not sure there is more to say on that. Our position is that the fees should be eliminated.
Senator McCoy: Thank you.
Senator Carignan: The mechanics of protecting solicitor-client privilege are being played on with a view to making certain amendments. I am referring to Senator Dalphond’s comments. In any event, when the federal agency decides whether or not to disclose the document, it is the federal agency that will waive solicitor-client privilege. It belongs to it. In your experience, is this still the case? Are there any federal institutions that may have a document that is subject to solicitor-client privilege or privilege, but that does not belong to them and instead belongs to others? Have you witnessed cases that involved third parties?
The Chair: Mr. Aylwin or Mr. Boucher?
Mr. Aylwin: Clients are usually reluctant to share their lawyer’s opinions.
Senator Carignan: Yes, I know that, but I’m thinking of intellectual property, of certain legal opinions, for example, that could be required by the private sector, but sent to an organization to support a particular point, including in terms of protecting a trademark.
Mr. Aylwin: In fact, this will often be indicated in the waiver of disclosure.
Senator Carignan: It depends on the nature.
Mr. Aylwin: Yes, exactly. I haven’t seen any. The cases where I’ve seen legal opinions shared have been related to regulators. For example, in the accounting sector and for professional orders, there may be legal opinions. However, the process is supervised and specific provisions provide that there is no waiver because these opinions are disclosed.
When I read clause 23 relating to solicitor-client privilege, a little like Senator Dalphond said, it evokes for me the internal opinions of public bodies. I don’t have an example to give you, but it’s not out of the question; you’re right.
Ms. Senft: I appreciate the reference as being a somewhat theoretical question, but I believe that just recently, though it’s not in our submission, we have we’ve turned our minds to what I think what you’re getting at. That is, is it possible that if there was a compelled production of privileged information in the way it’s currently set out in the bill, might that capture records that are also subject to solicitor-client privilege that aren’t the property of the government institution?
For example, would a regulator such as OSFI potentially have, in its possession, information from another company that might be subject to solicitor-client privilege? Would there be a concern that somehow this would go further and capture those kinds of privileges? I think that’s possible and we haven’t given that detailed consideration. We can certainly come back to you with some further comments, if you wish, with respect to that particular issue.
The Chair: They would be welcome, Ms. Senft, from all the senators around the table. Before I have the privilege to thank you, Senator Lankin wanted to put forward a special request following our hearing this afternoon.
Senator Lankin: Thank you very much. Chair, as you know, I’ve recently joined this committee, so if I missed this and it has been done, my apologies. You can let me know.
There were a number of references last week and this week to other jurisdictions, Quebec, B.C., et cetera, with respect to a number of issues we heard today, including time limits, waiver criteria, expanded scope to PMO and ministers, mandatory review provisions, ministerial versus Parliamentary, proactive disclosure, oversight and review of that. I’m wondering if we could ask the analysts, with respect to the issues that are in the scope of this bill that have been raised, to take a look at that kind of comparison and provide us with an analysis of how those provisions have been working.
Senator Boisvenu: I think the steering committee planned to receive some witnesses from those provinces.
The Chair: With the additional information from Senator Boisvenu, we had a briefing, before we embarked on the study of this bill, we had an in camera presentation whereby every one of us was invited to familiarize himself or herself with the various legislations. We can certainly provide that to you and circulate it with committee members. But we have taken note of your request and will deal with it.
Senator Lankin: Thank you.
The Chair: Mr. Boucher and Mr. Aylwin, it is truly my pleasure to thank you for being available, especially since it was voluntary, wasn’t it? I hope we won’t get an invoice for your consulting fees. So we appreciate it twice as much that you made yourself available this afternoon. We are very familiar with your work, which is why we invited you this afternoon.
Thank you on behalf of all my colleagues around the table.
Ms. Kerr and Ms. Senft, thank you so much for the care that the Canadian Bar Association has brought to the preparation of its brief. We always appreciate the input of the Canadian Bar Association. You are an institution of public utility and we’re very grateful for you and the professional care you bring to the study of legislation and the contribution you make to our work. Thank you so much to you and all the other members of the Canadian Bar who participated in the preparation of the brief.