Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 53 - Evidence - November 21, 2018


OTTAWA, Wednesday, November 21, 2018

The Standing Committee on Legal and Constitutional Affairs, to which was referred Bill C-76, an Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments, and 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 4:24 p.m. to study the bills.

Senator Serge Joyal (Chair) in the chair.

[Translation]

The Chair: Welcome to all of you this afternoon. We are beginning our consideration of Bill C-76, An Act to amend the Canada Elections Act and other Acts and to make certain consequential amendments. We are pleased to welcome the Honourable Karina Gould, Minister of Democratic Institutions.

[English]

Welcome, minister. I understand that you are accompanied by your support staff with the secretariat.

[Translation]

Mr. Morin and Ms. Paquet, welcome.

[English]

You know well the procedure, minister. I don’t need to explain it to you. It is our first session on Bill C-76.

[Translation]

We will hear your statement and afterwards, there will be an exchange with the senators. You have the floor, Madam Minister.

Karina Gould, P.C., M.P., Minister of Democratic Institutions: Thank you very much.

[English]

Thank you for inviting me back. I am delighted to be here. Thank you for giving me this opportunity to address you this afternoon on Bill C-76.

[Translation]

I am very proud to appear before you today to discuss Bill C-76, the elections modernization act, which will strengthen the integrity and fairness of our electoral process, and ensure its protection.

[English]

I want to thank Senator Dawson for sponsoring Bill C-76 in the Senate, and Senator Frum and Senator Dasko for their contributions at second reading. I firmly believe the strength of our democracy depends on the participation of as many as Canadians as possible.

According to Elections Canada, 68.3 per cent of eligible voters cast their ballot in 2015, up 7 per cent from 2011. Although this is good news, we want to ensure that Canadians continue to take part in our democratic process in the most important exercise of all: casting a ballot on election day.

Should this legislation pass, it will reduce many of the barriers Canadians may face when casting a ballot or participating in the broader democratic process. With this legislation we are ensuring that every Canadian who has the right to vote will be able to cast their ballot. Whether a Canadian is living abroad, is in the Armed Forces or is at a university, they should be able to cast a ballot. Indeed, they have a right to.

Our Canadian Armed Forces members make tremendous sacrifices protecting and defending our democracy. Bill C-76 will make it easier for our soldiers, sailors and air personnel to participate in our democracy. It allows our CAF members the same flexibility as other Canadians in choosing where to cast their ballots, whether it be to vote at regular polls where they reside in Canada, to vote abroad, to vote at advanced polls or to vote in special military polls as they currently do.

Currently there are barriers in place that make it difficult for some Canadians to exercise their right. That is why this legislation is so important. It takes important steps to undo many aspects of the previous government’s Elections Act. Stats Canada estimated that over 170,000 Canadians were unable to cast their ballot in 2015 because of the previous government’s decision to make voting less accessible.

Voting is a right, and it is the responsibility of the government to make voting accessible to as many Canadians as possible. Reinstating the voter information card as proof of residency and restoring the option of vouching for another eligible Canadian without proper ID is simply the right thing to do. These measures will empower Canadians who previously could not vote to cast their ballot on election day.

[Translation]

We are taking concrete steps to make the democratic process accessible to all Canadians. Canadians living with a disability must have the same opportunities to take part in the electoral process as their fellow citizens. We are extending the accommodation measures to include all disabled citizens, not only those with physical disabilities. The act will increase assistance and support services at polling stations, and will give individuals living with a disability the possibility of voting at home, whatever their particular disability.

It can also be more difficult for disabled Canadians to take part in election campaigns, because the documentation and campaign offices are not always accessible. Bill C-76 will encourage political parties and candidates to plan accommodation measures for disabled electors by creating a financial incentive in the form of the reimbursement of expenses for accommodation measures. Those measures could, for instance, be sign language interpretation during an activity, or the adaptation of campaign materials.

The act will also amend the rules on electoral spending, so that disabled candidates and candidates who take care of a child or of a sick or disabled family member may run more easily as candidates in elections. The candidates may use their own funds or their campaign funds to cover the cost of child care and the costs related to their own disability, or the care of a disabled person. Up to 90 per cent of those costs may be refunded.

[English]

In 2014, the previous government limited the Chief Electoral Officer’s education mandate, removing the CEO’s ability to offer education programs to new Canadians and historically disenfranchised groups.

I believe that as the federal government it is our responsibility to empower Canadians to vote and participate in our democracy.

Should Bill C-76 pass, the Chief Electoral Officer’s education mandate will be restored and the CEO will undertake broad education campaigns about elections. Canadians will know when, where and how to vote. We want Canadians to be ready for election day, no matter what political party or candidate they vote for. This also means preparing first-time voters.

The creation of a register of future electors will allow Canadian citizens between the ages of 14 and 17 to register with Elections Canada. When they turn 18 they will automatically be added to the voters list. This measure will invite more Canadian youth to participate in our democratic process. While more young people voted in 2015 than in recent previous elections — that is 57 per cent of voters aged 18 to 24 — their numbers were still significantly less in comparison to older Canadians.

For example, for voters aged 65 to 74 voter turnout was 78 per cent. This measure will invite more Canadian youth to participate in our democratic process.

[Translation]

It is essential that we make voting easier and more convenient for Canadians. This applies to their experience at polling stations, as well as to advance voting or voting on election day. Bill C-76 recognizes that Canadians have very full schedules, and consequently increases the number of hours polling stations will be open to 12 hours a day. The law will also simplify admission procedures at regular and advance polling places by allowing electors to vote at any table in a polling place rather than waiting to be assigned to a specific table. Those measures will reduce wait times.

In addition, the act will broaden the use of mobile polling stations for advance voting and on election day in order to better serve remote, isolated, or small populations.

[English]

As Minister of Democratic Institutions, it is my responsibility to ensure we maintain the trust of Canadians in our democratic process. To maintain that trust we must be transparent. Canadians want to know who is spending money during an election and who is trying to influence their choices as they consider who they will vote for and when they cast their ballots.

Bill C-76 prohibits all funding from foreign entities related to elections. Third parties will be required to open a dedicated Canadian bank account and use easily visible identifying tag lines on all partisan advertising.

Amendments were also made by the House of Commons committee that will require online platforms to disclose the identity of advertisers by maintaining a publicly accessible registry of political ads published on the platform during the pre-election and election period. These measures will ensure greater transparency and provide Canadians with more information with respect to who is trying to influence their decision.

[Translation]

In addition, it will be more difficult for offenders to escape the elections modernization act sanctions, because it strengthens the powers of the Commissioner of Canada Elections, and contains a wider range of sanctions for offences.

The Commissioner of Canada Elections will be more independent from the government, since he will once again report to Elections Canada and to Parliament through the Chief Electoral Officer, rather than through an important member of cabinet.

The commissioner will have new powers, and will now be able to impose administrative sanctions for minor offences regarding campaign publicity, political party funding, third party expenses and certain offences concerning the right to vote. Giving those powers to the commissioner will contribute to restoring trust in the electoral process and to maintaining the integrity of the electoral system.

Thanks to all of the measures introduced by Bill C-76, we will have more modern and transparent democratic institutions that will be more accessible to all Canadians. As Minister of Democratic Institutions, I am determined to preserve and strengthen the trust Canadians have in our democracy.

[English]

Honourable senators, in a democracy there is no right more fundamental than being able to cast your ballot on election day. Canadians need to have a process they can trust, and our election laws need to be as robust as possible. I firmly believe that Bill C-76 is good for democracy and good for Canada.

I am now happy to take your questions.

The Chair: Thank you very much, minister.

[Translation]

Senator Dupuis: Madam Minister, welcome. Thank your for being here with us today.

I’d like to direct your attention to Recommendation No. 8 from the June 2018 report of the House of Commons Committee on Access to Information. That recommendation reads as follows:

[English]

That the Government of Canada take measures to ensure that privacy legislation applies to political activities in Canada either by amending existing legislation or by enacting new legislation.

[Translation]

It is not in Bill C-76, but the government intends to include it in another bill. Your government was very consistent on the advancement of equality between men and women, and on the protection of personal information. Is it your intent — since this does not appear in Bill C-76 — to include this in another bill?

Ms. Gould: I think it’s important to specify that, in Bill C-76, for the first time, political parties will have the duty to publish a public policy about how they handle personal information. Otherwise, they will be delisted as political parties. So, that is a first important step.

However, what I said in the House of Commons, and will repeat here, is that I want a study to be conducted for parliamentarians, to examine how political parties could be a part of a system to protect personal information. I think it’s very important for political parties to communicate with Canadians, discuss their policies, and talk about what they want to do for the country. I am, of course, open to suggestions, but I think we have to do more studies in order to see exactly how that system will work.

Senator Dupuis: Are you equally open to a parliamentary study on the matter of gender equality regarding the list of political party candidates, since that also is not included in Bill C-76?

Ms. Gould: I think that would be really interesting. As you know, I am really committed. I do a lot of activities to encourage young women to get involved in politics.

One of the measures I am truly proud of in Bill C-76 is the measure I mentioned in my opening statement, regarding investing more in child care. Contrary to what is in current legislation, those funds could be separate from regular funds, which means that this will not change equality — we can be talking about a man who does not need financial assistance to provide care for his children, as opposed to someone who does need it and would receive it, for instance.

As parliamentarians and political parties, it is important that we be leaders, and commit to encouraging women from all areas of the country to take part in politics and become candidates.

Senator Dupuis: I would quickly like to ask a complementary question.

I have no doubts at all regarding your government’s intent, your personal commitment, or that of the Prime Minister, because statements have been quite consistent in that regard. However, I’m trying to see if there are reasons to hope that in the near future you will deal with systemic issues like parity, as well as the system itself, so as to allow for gender parity in the number of candidates.

Ms. Gould: I am always open to the idea of a parliamentary study to examine how we could encourage more women to come forward in this system.

[English]

Senator Frum: Thank you, minister, for being here.

Bill C-76 changes the rules regarding electors residing outside of Canada. Specifically, Bill C-76 takes away two of the three conditions that have been in place since 1993 for Canadian expatriates who want to vote.

Up until now, they have had to reside outside of Canada for five years or less and have had to have an intention to return to Canada to resume residence in order to qualify to vote. Those conditions have been removed. The only one left is that they must have resided in Canada before but there is no minimum length of residence required.

Why is your government making the political decision to expand voting rights to non-residents? There is, it should be clear, no legal or court imposed requirement for you to have done this. It was a political decision you made, so I am interested to know the political reasons.

Ms. Gould: Section 3 of the Charter. As a Canadian citizen, you have a right to vote.

Senator Frum: Right, but, as you know, in the Gillian Frank case before the Supreme Court now awaiting decision your own government submitted a factum in which you argued that there are reasonable limits placed on the Charter rights of Canadians to vote.

Minister Wilson-Raybould’s department argued that the residency requirement is different from other historical limits placed on the right to vote, such as property ownership, gender, incarceration or mental ability.

It is different because it makes no evaluation of the subjective qualities of individual voters. It simply recognizes that long-term non-residents have different and less onerous responsibilities under Canadian law by the objective measure of geography and international law. That is the position your government submitted to the Supreme Court.

Ms. Gould: It is the right thing to do to extend voting rights to Canadian citizens living abroad. We are doing it because of section 3 of the Charter. As a Canadian citizen, you have the right to vote.

Senator Frum: If you felt that all Canadians had the right to vote, why did you include some restrictions in Bill C-76? There is still the requirement that you had to have been a resident.

If you really believed that all Canadians had the right to vote, you would have extended it to all Canadians, whether or not they had ever been a resident, but that is not what this bill does.

Ms. Gould: This bill extends it to Canadians living abroad who have resided in Canada. The reason for that is because our electoral system is based on geography. You have to prove residency in order to cast your ballot.

Bill C-76 will enable Canadians living abroad to cast a ballot at their last place of residency. It is absolutely the right thing to do because Canadian citizens have a right to vote, and we believe that very firmly.

Senator Frum: Did you consider or why didn’t you consider establishing a minimum for the amount of time someone has to reside in Canada?

As it stands now, there is no minimum, so potentially it could be a week or a month that the individual citizen has resided in Canada and that gives them the right to vote. Why no minimum time?

Ms. Gould: If you are a Canadian citizen who has resided in Canada, you should have the right to vote in Canada. That is something I believe firmly and strongly. It is absolutely the right thing to do.

Senator Frum: But you understand what I am saying. A distinction is being made.

Ms. Gould: And I disagree with you. I believe very firmly that this is the right thing to do.

Senator Frum: Why is there a distinction between someone born in Canada who was removed from Canada by their parents and spent the rest of their life abroad, versus someone who is a child of Canadians living abroad and still lives abroad but may have one day the intention to return?

Why is there that distinction between someone who has lived here potentially for one month and someone who has never lived here at all? You are making a distinction between those two people.

Ms. Gould: Because we have to be able to prove residency in Canada and have a place to cast that ballot. I think this is a very fair way to extend voting rights to Canadians living abroad who have a right to vote.

Senator Frum: Why did you get rid of the requirement that you had to express an intention to return to Canada? Why the attachment to Canada? Why is that no longer a requirement to vote?

Ms. Gould: The attachment to Canada is by virtue of having your Canadian citizenship. Intent to return to Canada is hard to prove. I could intend to return to Canada while living abroad, and another opportunity could come up and I would stay away. I had every intention of returning, but perhaps there was a reason I was not able to.

The fundamental principle of this is that as a Canadian citizen you have a right to vote in your election. We are extending that as broadly as we think possible.

Senator Frum: Very broadly, indeed.

Senator McIntyre: Bill C-76 proposes two notable changes affecting youth. I understand young people between the ages of 14 and 17 years would be able to register as future electors and those 16 years or older would be able to work for Elections Canada.

In your view, would a proposed register of future electors raise any privacy considerations related to collecting the personal information of teenagers?

Ms. Gould: We went over this in the house as well. With regard to a future registry, this would be for individuals between the ages of 14 and 17 to register with Elections Canada, but they would not be on the electors list until they turned 18 like anyone else on the electors list. That information would only be provided as being on the electors list once an individual reaches adult age.

Senator McIntyre: Currently, under the Canada Elections Act, compliance is enforced almost entirely through criminal sanctions. Bill C-76 would establish a system of administrative monetary penalties to ensure compliance. Could you explain the rationale behind this?

Ms. Gould: I am sure many of you read the report of the CEO of Elections Canada following the 2015 general election. Many recommendations were made on behalf of the Chief Electoral Officer and the commissioner to institute an administrative monetary penalty regime in the instances of minor infractions. Then they could actually enforce minor election infractions, whereas the penalties were so high previously that often it was the case they were not being enforced for minor infractions.

This would enable the commissioner to have greater tools at his disposal to be able to enforce and uphold electoral legislation. Also it enables for compliance agreements. It provides the commissioner a greater tool kit to be able to enforce what is very robust and strong election legislation. It enables him to do that.

Senator McIntyre: My next question has to do with the voter information card. Could you comment on the use of the card as a piece of identification? I have a hard time understanding that one.

Ms. Gould: I should correct you because it is actually not a piece of identification. It would be used to help establish residency, and it would need to be used in addition to another piece that establishes identity.

As the CEO of Elections Canada has said, we should think about the senior woman who doesn’t get anything at her mailing address that has both her residential address and her name on it because everything is in her husband’s name.

The voter information card is for people like that senior woman who actually doesn’t have a piece of identification that establishes both her identity and residency. It has to be used in conjunction with another item that establishes identity.

Senator McIntyre: It will be a secondary piece of identification for voters who lack a primary piece of identification?

Ms. Gould: To establish residency.

Senator Gold: This is a question about spending limits on parties and on third parties. It is really a question of understanding why different language appears to have been used.

For registered parties, the spending limits are worded in terms of maximum amounts either for an election or for a pre-election period. When we’re talking about third parties or foreign third parties, the language is worded in terms of activities such as advertising and the like, carried out during, transmitted during or continued during the same pre-election or election period.

Is there any reason why these limits are worded differently? Would either wording allow extra spending in advance of either of these periods like prebuying services to be used during these periods?

Ms. Gould: I will explain it, and my officials will jump in if additional information is needed.

With regard to political parties everything they do during an election is an expense, whereas with regard to third parties there are limited activities that would be incurred. There is a slight difference in how Elections Canada and the law would interpret the different activities that are under way. That is the reason for it.

Jean-François Morin, Senior Policy Advisor, Democratic Institutions Secretariat, Privy Council Office: I would only add that third parties are pretty much everybody except candidates and political parties.

A third party could be your mother who wishes to express herself on election matters. It could be a local association that wishes to do so. It could also be a business that thinks some of its views should be communicated to Canadians.

In the case of political parties during the election, as the minister said, the overarching concept of election expense is used that includes a lot of costs associated with the operation of the party and the campaign.

As for third parties, third parties used to be regulated only with regard to election advertising during the election period. During the election period we are now expanding it to partisan activities and election surveys. That is also why during the pre-election period we are targeting the specific activities: partisan advertising, partisan activities and election surveys. Recognizing that these persons have other kinds of expenses, we only want to target those that specific relate to elections.

Senator Gold: If I understand correctly, it has to do with the fact that it is a specific set of activities for third parties. It has nothing to do with when the costs are incurred as compared with when the activity takes place.

Mr. Morin: We need to be prudent with that because it also applies to political parties. It doesn’t matter when the cost was incurred. It matters that the cost was incurred for the purpose of the election period. It is the same for third parties.

Ms. Gould: If you buy a bunch of brochures today but use them during the election, that counts as an election expense even though it was outside of the period.

[Translation]

Senator Boisvenu: Welcome, Madam Minister. I’d like to go back to the topic my colleague raised with you, the elimination of the five-year provision for expats. The bill intends to remove that provision, if I understood correctly. Thus any Canadian born in Canada who leaves the country for five, 10, 15 or 20 years would have the right to vote. Did I understand right?

The Supreme Court heard a case in March: Gillian Frank v. Attorney General of Canada. That submission was made on behalf of an association of Canadian expats. In this dossier, the court will have to decide on the application of the Canadian Charter of Rights and Freedoms. If it does not rule in favour of that association and maintains the five-year provision, will you comply with the Supreme Court decision?

Ms. Gould: The right thing to do is to continue our work with the bill that is before us. I deeply believe that Canadians have the right to vote.

Senator Boisvenu: I understand, but you know that in this case, Quebec is also a party before the Supreme Court. It is defending the principle of not recognizing the franchise of expats who have been gone more than five years. If the Supreme Court hands down a favourable decision, all of the provinces will have to change their electoral law to allow Canadians to vote in every province. Would it not have been preferable to wait for the Supreme Court to make its decision before amending the law? If the Supreme Court does not rule your way, you are going to have to amend the law.

Ms. Gould: In our electoral platform, we promised to extend the vote to Canadians who live outside of Canada. I truly want to be faithful to that promise made to Canadians. I think that that citizenship right is in the Canadian Charter. We will go forward with this bill because it is the right thing to do.

Senator Boisvenu: I understand that you have a political commitment. However, let’s be logical. If you say tomorrow morning that we apply the law and that this right is extended to all Canadians, the provinces are going to have to change their legislation to respect that principle. However, if the Supreme Court says in six months or a year that you are wrong, that you cannot grant the right to vote to people who have been living abroad for more than five years, you are going to have to backtrack. Why not wait? If the Supreme Court says that you are right you can then move forward. It would seem logical to me to proceed in that way.

Ms. Gould: I do not agree with you.

Mr. Morin: Thank you very much, Senator Boisvenu, for your question. I’d like to make a small clarification. Of course, as the minister was saying, section 3 of the Charter guarantees the right to vote to Canadian citizens. Any restriction of that right must be justified, under section 1 of the Charter.

As for the other matter, I cannot comment on that case here.

Senator Carignan: Does this not involve sections 2, and 7 to 15, which can be limited? Section 3 cannot be restricted.

The Chair: It is sections 2, and 7 to 15. According to section 33, irrespective of provisions in section 2 or sections 7 to 15 of the Charter, that is what is covered by the notwithstanding clause.

Senator Carignan: We’re not talking about the notwithstanding clause, but about section 1.

Mr. Morin: Those are two different things.

Senator Carignan: I had misunderstood.

Mr. Morin: We are not talking about applying the notwithstanding clause to this section. All of the rights included in the Charter may be limited by a rule of law and can be justified in a free and democratic society under section 1.

The only comment I would like to make regarding Senator Boisvenu’s question is this: in its decision, the court will decide whether the limits that are found in the Canada Elections Act, prior to Bill C-76, are justifiable or not. Even if the court determines that those limits are justifiable, government and Parliament may choose to impose even fewer limits than the minimum stated by the court. Should the court determine that the limits are justifiable, the act as it stands will be amended by the bill and could continue to exist. Of course, should the court determine that the limits are not justifiable, the law will already have been amended to take that into account.

[English]

The Chair: The only comment I would make is in contrary reflection to the government’s reflection in relation to defending the constitutionality of Bill C-14 with the reasonable foreseeable debt, but that is another discussion we can have at this table at another time.

Senator Lankin: I am not a constitutional lawyer, so I will ask some more basic questions on this approach. I want to follow up on the expat voting rights issue and on Senator Frum’s questions.

Along with others, I had an opportunity to attend a panel presenting on this issue. There were expert opinions on both sides of it. One opinion was very clearly what you have set out: It is a constitutional right and there is no need for any restrictions, et cetera. That is one side.

The other side was quite interesting and I thought put forward some interesting proposals. There was an argument or an expectation that people have some connection to community, connection to Canada and connection to country. That might be a reasonable limit; a time minimum on residency could be a reasonable limitation on that constitutional right. They proposed three years as opposed to five based on the requirement for new immigrants coming to Canada. That was a parallel but no substantive parallel, I would argue.

On the thought that there was some real connection, they presented some interesting statistics about the majority people going for employment. They keep connections. They have family. It was quite a full exploration of it.

However, I was interested in the counterpoint, that someone is born a Canadian by right and a week later is moved and doesn’t have any connection or residency. They could go straight from hospital, so I don’t know if they would have to vote in the riding where the hospital was.

Some things don’t ring strong to me in your argument as to why there should be no requirement for a connection to Canada of any sort.

The Chair: Your question, senator.

Senator Lankin: I would like a response to that. I know you feel strongly that it is a right. You believe it very strongly. A lot Canadians believe there should be a connection, and I would like you to comment on that.

The other question is with respect to voting abroad and what it would take: some minimum residency and passport as an ID. We talked about the potential of voter interference, whether it was foreign interference manipulating Canadian voters or whatever. We talked about the possibilities there. They may be extreme, but I would appreciate your comments, minister.

Ms. Gould: On the final point, the CEO requires a passport or birth certificate to vote from abroad. That is a requirement.

On the first point, why is citizenship not tangible enough? As a citizen, you have the right to return to Canada at any point in time. As a citizen, if you live abroad you have access to consular services. Why is that not enough to be able to participate in Canadian democracy?

Has anybody here lived abroad?

The Chair: Yes.

Ms. Gould: When you lived abroad, did you feel less Canadian? Did you care less?

The Chair: I always had the idea of returning.

Ms. Gould: Did you feel less of a connection to Canada? I lived abroad. I voted abroad. I voted when I lived in Mexico. I voted when I lived in Washington. I voted when I lived in the U.K. I love this country. I didn’t know when I would return. I assumed I would at some point, but I followed Canadian news every day when I was living abroad.

What makes me any less Canadian by not living in Canada? That is the question you should be asking yourselves when you are thinking about Canadians living abroad. We absolutely have a stake in this country, no matter where you are. By virtue of having citizenship, you are entitled to certain rights and services. That doesn’t change when you are not living in Canada. You should have the right to have a say in how some services are provided.

Senator Lankin: Offline I will talk to you about Canadians who are being denied those services right now, but that is another conversation.

Ms. Gould: Maybe that is the reason why they want to be able to vote.

[Translation]

Senator Carignan: Thank you, Madam Minister. I was reading the press reviews on foreign influence. Last March, the Prime Minister raised the fact that foreign interference in elections is a very real threat. NATO raised the risk that Russia could interfere in the Canadian election in 2019. The Prime Minister stated that he had given you the mandate to ensure the integrity of the vote. Last week, the Minister of Defence warned us that Canada would be the target of Russian interference during the elections through the publication of fake news and by control of media sites.

However, all I see in Bill C-76 are platform points stating that Internet service providers will have to keep a registry of the advertising. According to a recently updated old article on broadcasting, offshore antennas cannot be used to transmit advertising. When I read that article, I thought I was back in the 1960s. What is there in your bill that allows you to ensure the integrity of the vote and prevent foreign countries or organizations from interfering in social media or digital platforms that could have an effect on voters?

Ms. Gould: Thank you for the question, which is very important. First, it would be practically impossible to prevent any foreign interference in the elections. This has always been a problem in democracies.

However, the important point in Bill C-76 is the social media platform registry, which will show where and how much has been spent on political advertising during an election period. It is an innovative measure. It is probably the first time on the planet that this is being legislated. According to our research and observations regarding elections globally, foreign actors could use social media platforms to influence Canadian votes. So, this method will allow Canadians to know where the money comes from that is behind political advertising during an election.

It’s also important to know that Bill C-76 is one of the tools we can use as a government to analyze the risks of foreign interference. I work with the ministers of Defence and Public Security to make sure that we will be ready when the next election comes. I also work with Elections Canada for the purpose of making Canadians aware of the real risks related to fake news. As the Minister of Democratic Institutions, I don’t think that it is the government’s role to announce good or bad news to Canadians. Rather, we need to provide mechanisms to Canadians so that they can make their own decisions. That is the most important measure we can put forward.

Senator Carignan: Regarding the platform, it must have existed for at least one year. We are talking about three million visitors for something published in English. I think it is one million for French. Since it is so easy to get around that section, this has to have taken place during the previous year. If I just created a platform, let’s say with the intention of causing trouble, I will not use a platform that has existed for a year and two days. I will create a new one and I will use it to attain my malicious goals.

Ms. Gould: They need to go where people will be able to see these advertisements and this information. It’s always possible, I imagine, though not probable, that someone will create a platform to reach a certain number of people in order to access that information, but we’ve set the bar quite high since we know that this is something that could be of concern to Canadians. We are talking about platforms like Facebook, Twitter, Google, YouTube, Reddit, as well as dailies like The Globe and Mail or Le Devoir in Quebec. Those are platforms where people can find information.

Senator Carignan: Those are not the ones I am worried about.

Ms. Gould: According to what we know, and based on all the research we did over the past two years, foreign interference took place on Facebook, Twitter, Reddit and YouTube; they use those tools and those platforms to engage people, but they don’t necessarily use other platforms.

Senator Carignan: What is being done regarding the groups on those platforms so that the platforms themselves may foresee or prevent malicious intent? I read an article last week, which I tried to find, in which I believe Prime Minister Trudeau said that his government was holding discussions with the directors of these big businesses in order to raise their awareness, or to find ways to prevent such problems, and that is aside from and beyond legislation.

Ms. Gould: The other important element in the bill is that online platforms will not be allowed to accept foreign-funded advertising. That’s quite important. I’ve been in talks with the people at the platforms for the past year, and I imagine you read the same article I did on Facebook last week. Leading up to the election, the online platforms are working to ensure the integrity of the data sent via their sites. Our discussions are ongoing to make sure everything is done in a way that meets Canada’s satisfaction. I imagine they are having these talks internally, as well, because maintaining the trust of Canadians who use their platforms is important if they don’t want their reputation to suffer.

[English]

Senator Pate: Thank you very much, minister, for joining us. You mentioned previously a number of consultations that you engaged in. I am curious about the nature of the consultations you had with Indigenous communities in particular.

What kinds of concerns did you hear from them? As well, how do you plan to increase voting in Indigenous communities, given the ongoing concern in many sectors about that issue?

Ms. Gould: We engaged with some Indigenous communities and Indigenous organizations across the country. I would say the number one concern that came about was with regard to proper voting identification and registration.

One of the first conversations I had as Minister of Democratic Institutions was with the previously acting and now current CEO of Elections Canada about the lack of ballots on reserves that we heard about in the last election. That was a result of low voter registration and therefore unpreparedness to print the required ballots.

He assured me that would absolutely not be the case moving forward and that Elections Canada was conducting a more thorough attempt to register Indigenous Canadians, particularly living on reserve, to ensure that would not be the case moving forward.

In the last election, we actually saw in all provinces except Quebec a higher voter turnout among Indigenous Canadians. In the legislation, vouching is one of the important tools to ensure that Indigenous Canadians who don’t necessarily have a fixed address civic address — usually it is house 17 on reserve X — will be able to cast their ballots. One important provision is that band leadership will be able to provide confirmation of residency for them to be able to vote.

Returning the mandate for informing and educating Canadians about elections to the CEO of Elections Canada is incredibly important because it will enable Elections Canada to undertake the important voter outreach and education initiatives that they had undertaken previously, particularly with populations that were less likely to vote or had lower voter turnouts. This will further enable them to reach out to Canadians who have traditionally voted less than they have before.

Senator Batters: Minister Gould, the Liberal government tries to defend allowing the use of the Elections Canada voter information card as identification by saying that it has to be accompanied by one other form of ID, and you did this again today.

However, those voter information cards are riddled with errors. There were 1.6 million error-riddled cards in 2011 by Elections Canada CEO’s own estimate. That could form the only address identification that is needed for a voter. Then a voter only needs to show a second form of identification with their name only and no address.

You are also allowing identity vouching to be used for that person to prove their identity. That person could vote in an election with no actual identification and only an information card that may have been printed and sent by Elections Canada sent in error.

Why has your government stripped away those crucial protections that our Conservative government put in place to safeguard our democratic system so that someone with no actual identification with their address and only a voucher for their identity can vote under Bill C-76?

Ms. Gould: Have you ever scrutineered?

Senator Batters: Absolutely.

Ms. Gould: Have you sat there and watched someone be turned away from voting?

Senator Batters: Actually, I scrutineered and spent all day in the polling stations last election with significant identification required but with many different types of identification allowed. What I saw all day long at all polling stations is more people than ever coming to vote and no problems witnessed.

Ms. Gould: I have scrutineered before and I have watched as an individual came and was vouched for. It was a dignified process. It was a process in which there was integrity. The person who is vouching swears an oath to attest they are confirming the identity and the residency of the individual.

This was an individual who was one of our more vulnerable in society. To say to that individual that we would not allow them to vote because they don’t have a piece of identity seems wrong to me. Because as a Canadian citizen, they have a right to vote. We are talking about our most vulnerable citizens whom we should be encouraging to vote because the policies we’re making here in Ottawa are the ones that have the greatest impact on them.

With regard to Elections Canada, they do an incredible job at maintaining the integrity of our system. Despite what Conservatives have said about voter fraud, we don’t have instances of widespread voter fraud in Canada.

In fact, Elections Canada does an incredible job of maintaining a registry of millions of Canadians. Ten million Canadians move between election cycles. That is an incredible amount. Those Canadians are able to cast their ballots, and Elections Canada does an amazing job of doing that.

For me, when we are talking about homeless individuals, the senior citizen that I referenced earlier and university students, these are people who should absolutely be voting. We should be doing everything we can to encourage and enable them to cast their ballot because their voices matter. I do not believe we should be limiting their right to cast their ballot and to participate in a democratic society.

Senator Batters: Right, and we did allow vouching as well. Minister Gould, Bill C-76 proposes to return the Commissioner of Canada Elections to the office of Elections Canada. We separated those critical functions. Your government has returned the commissioner, as you stated in your opening remarks, to report to Elections Canada.

Previously, the Commissioner of Canada Elections was within the Office of the Director of Public Prosecutions. Now the commissioner will be an employee of Elections Canada. Certain offences in Canada’s Elections Act could potentially be committed by Elections Canada officials or employees. If that happens, who would investigate those Elections Canada officials or employees and who would prosecute those offences?

Ms. Gould: The wording was to report through the CEO of Elections Canada as opposed to reporting through a cabinet minister, which is an important distinction to be made. It is very clear there is independence between these offices. However, again, if honourable senators, as I am sure you did, read the recommendations from the CEO following the 2015 election, it was recommended to put the commissioner back into the same housing as the CEO of Elections Canada —

Senator Batters: Could you answer my question about who would investigate and who would prosecute?

Ms. Gould: — as well as with regard taking it out of the Department of Public Prosecutions to ensure a timely ability for the commissioner to be able to prosecute.

Subsection 509.21, with regard to independence, says all decisions made and actions taken by the commissioner under any provision of Part 19 are to be made or taken independently of the Chief Electoral Officer.

Senator Batters: But, minister, who would investigate those Elections Canada officials or employees and who would prosecute them? It would be the Elections Commissioner. Is that correct?

Ms. Gould: It is not an employee in the context you are trying to frame it. It is simply to enable them to be housed together and to be able to ensure independence from government, which is extraordinarily important.

Senator Batters: What if in the worst case scenario the Chief Electoral Officer himself potentially committed an offence under the Elections Act? Who would investigate that? Who would have the power to compel that CEO’s testimony and who would prosecute it?

When you say Elections Commissioner he will be under the office of that Chief Electoral Officer under your bill. Wouldn’t that really be the Chief Electoral Officer investigating himself, deciding not to compel himself, and prosecuting himself?

Ms. Gould: They are still separate and the commissioner, as I stated, is independent of Elections Canada. However, should the commissioner choose, he could hire a separate investigator to do the investigation.

Senator Batters: But it is no longer under the Director of Public Prosecutions. Is that correct?

Ms. Gould: It is an important thing to note that it is no longer under the Director of Public Prosecutions so that the commissioner can undertake timely investigations and to ensure that charges are laid.

In fact, one of the other things in Bill C-76 that I mentioned in my opening remarks is the ability to compel testimony. We are trying to empower the commissioner to investigate to ensure that a fulsome investigation is done and then to prosecute elections offences. When it was under the Director of Public Prosecutions, it would take too long and they would not be able to maintain.

I highly recommend you ask the commissioner these questions because it is very compelling as to why this change needed to be made to ensure the integrity of our electoral system.

Senator Batters: Thank you.

[Translation]

Senator Dalphond: Thank you for being here today, minister. I have two questions for you about voting by Canadians living abroad. It’s a major concern a number of us have.

My first question is this. In preparing the bill and attempting to set the parameters around Canadians’ right to vote — as protected under the Constitution, in section 3 of the Canadian Charter of Rights and Freedoms — did members of your department and the staff who support you consider the experiences of other democratic countries that recognize the right of citizens living abroad to vote? Countries that come to mind are the U.S., France, Italy, Switzerland and Belgium. In Belgium, voting is compulsory for non-resident citizens and Belgians living abroad, but they must register to vote in a diplomatic or consular mission first. The U.K. grants the right to vote to citizens who have been absent from the country for up to 15 years. Am I right to assume that you looked at what other democratic countries have done?

Ms. Gould: Yes.

Senator Dalphond: A little.

Ms. Gould: Actually, many other countries do the same, including Mexico and Colombia. Many countries around the world encourage their citizens living abroad, regardless of where, to vote and keep their ties with their country of origin.

Senator Dalphond: Does your department have data on how many Canadians living abroad pay income tax in Canada? They would be people who continue to pay income tax to Canada, even if they’ve lived abroad for five, 10 or 15 years, because they receive some form of income from sources in Canada, such as Canada Pension Plan or Quebec Pension Plan benefits, or dividends from Canadian companies that withhold taxes at the source.

Ms. Gould: I don’t have those numbers handy, but the reasoning stems from the fact that just because a Canadian doesn’t live in Canada, it doesn’t mean they do not have strong ties to Canada.

[English]

The Chair: I would like to ask you a very specific question in the context of the issue raised by Senator Carignan, which is the foreign intervention or foreign country intervention into the electoral process.

As you stated, it is a preoccupation of all Canadians because we see what has happened in the United States. We see 50,000 Internet accounts opened by Russia during the last election. We see what happened in Brexit with Cambridge Analytica. Canadians are strongly preoccupied by that.

This committee issued a report in June 2017 entitled Controlling Foreign Influence in Canadian Elections. At page 3 of this report the committee unanimously recommended that:

Despite the challenges in countering foreign interference, Canada’s electoral laws must include strong prohibitions and sufficient penal consequences to deter and denounce any violations. Amendments could be considered that would allow for the seizure and forfeiture of assets of foreign entities that attempt to interfere in our elections.

When I read the bill, my first target was to find where were the strong penalties to denounce any violation and where were the provisions providing for seizure and forfeiture of assets of foreign entities.

To tell you the truth, I was left wanting because the administrative penalties included in Bill C-76 won’t deter Russia or any other country from interfering in our election. We need to give a very strong signal, and this signal is unfortunately not in the bill as we had recommended in June 2017.

You answered us following the tabling of our report. As I say, we did that work of reflection around this table, concentrated essentially on that very subject. We are left wanting and we face the next election with, I would say, limited tools to prevent foreign intervention.

Why did you not give effect to the recommendation that we made to you and to the government a year ago when you were drafting Bill C-76?

Ms. Gould: The Criminal Code is still in place and still enforceable in Canada whether or not it is an election infraction. However, with regard to the use of foreign funding in an election, the penalty and the fine would be up to five times the amount that was used. That being said, Bill C-76, as I mentioned to Senator Carignan, is just one of the tools we have with regard to how to deal with foreign interference.

If we were to have an incident similar to something that happened in the United States, we would want to use the full breadth of the tools available to us as a government also with regard to sanctions, perhaps the Magnitsky Act. We would want to think very thoughtfully and carefully about how we react to that, much like they did in the United States.

We are trying to do what we can within the Elections Act to limit the ability of foreign actors to interfere in our elections and to deter any collusion between foreign actors and Canadians. We still have and are able to use the whole tool kit of the government available to us and at our disposal should something occur. I think it would warrant an act of such magnitude.

The Chair: The United States has been studying that issue, as you know, and came forward with much stronger penalties than the one we have in the Elections Act.

Offences within the Elections Act are covered by the penalties included in the Elections Act. That would be the way the court would interpret it. As I say, there is no specific provision of deterrence in the Elections Act that would really signal this is a very serious crime in Canada. Canadians are watching how strongly the government will want to intervene to prevent that.

Ms. Gould: It would become an issue of national security if it was on the same scale as in the United States. I think we would act accordingly.

The Chair: Thank you, minister, for having participated in our deliberations this afternoon. I am sure if we need to get additional information, Mr. Morin and Ms. Paquet will remain at our disposal later on in that discussion.

Ms. Gould: Thank you for having me, and you are in excellent hands. These are two very capable individuals.

The Chair: We have the pleasure of welcoming three guests this afternoon. First is Michael A. Geist, Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa. He is known to many of us because of his abundant writings on that issue.

We are also pleased to welcome Michel W. Drapeau. He contributes to our reflection on many issues. I remember the military justice system, something we might have to reconsider later in the months ahead. Today we are studying access to information, and it is our pleasure to welcome Karl Delwaide, Partner, Fasken Martineau DuMoulin.

I will invite Mr. Geist to make the opening remarks, followed by Mr. Drapeau and Mr. Delwaide. Then, of course, we will have questions and comments by my colleagues.

Michael A. Geist, Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, as an individual: I am a member of the Centre for Law, Technology and Society, but I appear in a personal capacity representing only my own views.

I am pleased to have the opportunity to discuss Bill C-58. Access to information is more than just a subject of research and analysis for me. I am an active user of the system, having integrated ATI requests into my research in an effort to increase the policy relevance of my work. Over the years, that has included requests that have revealed insights into trade negotiation positions, enforcement measures on digital policies and the result of public consultations.

As an active user, I have experienced and share the frustrations of many others: lengthy delays, extensive redactions, limited information on prior requests, poor compliance with proactive disclosure, and many more shortcomings.

For example, in conducting research on Canada’s entry into the Internet treaties of the World Intellectual Property Organization, I eagerly awaited the end of a 20-year waiting period on some records.

Yet, when the period ended and I filed my request, I was advised that there were no records as they had virtually all been destroyed consistent with government archival policies. In other words, the system created a Catch-22: no records in real time, no records after waiting decades, and little to no public information on important decision making.

In light of these experiences, it was with much anticipation that I looked forward to Bill C-58 and the promise of meaningful reform. I recognize this hearing comes toward the end of a long legislative process in both the House of Commons and the Senate. While there have been modest amendments along the way, the bill is largely much the same in form and substance as when it was first introduced.

Bill C-58 feels like a classic case of overpromising and underdelivering. It substitutes a commitment to bring the Prime Minister and government ministers under the Access to Information Act with the promise of proactive disclosure. Proactive disclosure is a reference to an open-by-default approach for certain ministerial information such as mandate letters and briefing books, but it is not a substitute for access to information.

The bill also fails to pick up on several key recommendations that have surfaced over the years. It does little to address overbroad exceptions that often result in redacted information, blank pages throughout the request, and lengthy delays. It also doesn’t adopt one of the Ethics Committee’s most important recommendations from when it studied the system: a general public interest override.

A general public interest override can cut both ways, sometimes leading to more disclosure and sometimes potentially less. However, many access to information laws include analysis to ensure that the public interest is factored into the decisions to determine what information is released. The federal law doesn’t do so, and the bill is silent on the issue.

I recognize the government has emphasized that this is the start of a reform process, not the end. To that end, the mandatory five-year review is touted as a mechanism to continue the discussion. Yet mandatory five-year reviews are no guarantee of reform. For example, the PIPEDA five-year review has failed to create a regulatory process for legislative updates, and the copyright five-year review sometimes seemingly benefits lobbyists rather than promoting better policies. Ultimately, reviews are no substitute for a bill that fails to fully address long-standing problems with the law or live up to campaign commitments to fix the system.

I know this committee has heard from many witnesses on potential reforms. I was pleased to sign on to a joint letter from many of the groups last year that addressed several of the concerns I have already highlighted, including expanding the scope of the act, creating a duty to document, narrowly defined exceptions, and the public interest override. While all of these are worthy of amendment, some of the focus should be on how to better leverage technology and the Internet to improve the effectiveness and the value we get from the access to information system.

Quickly, several possibilities for reform include, first, the elimination of all fees. As others have noted, this serves as an unnecessary barrier to request even $5 and hamstrings the ability to create online tools to better facilitate requests and open the system to new users. The revenues generated are largely immaterial, and the system would benefit from dropping the fees altogether.

Second, remove restrictions on accessible machine readable records and require disclosure of digital data operational records in a manner that is free, user friendly and accessible. Government records can assist with machine learning and artificial intelligence only if made available digitally.

Third, post completed requests in full to allow the public to access the released documents more quickly and easily. The informal request system provides some access, but there are still delays and additional guesswork on the substance of requests. Working toward full publication of requests would better leverage the investments in fulfilling those requests and enhance the open-by-default approach.

Fourth, build an ongoing database of completed requests that does not regularly delete the completed requests. We have an online database through an open portal. Yet, that portal deletes the records of completed requests within a couple of years of completion. In other words, it is not comprehensive. It is a running list of everything completed over the last two years. If there were an interest in a record, that interest may resurface. Having gone to the expense of generating the records, they should be retained, particularly as these records are in digital format.

Fifth, require more effective enforcement of the proactive disclosure of completed records. Earlier this year I wrote about the fact that there were some departments that had failed to post completed records for months on end. Certain departments were nearly a year behind in posting the actual completed requests that they have had.

Given the government’s emphasis on proactive disclosure, I would argue it is simply inexcusable that some government departments and agencies can go for months, or even years, without updating information on completed requests.

I look forward to your questions. Thank you.

Michel W. Drapeau, Professor, Faculty of Law, University of Ottawa, as an individual: I have at least a 25-year career with Access to Information. As executive secretary of National Defence in the early 1990s, I had corporate responsibility for the function of access and privacy and was at that particular end of the pipeline. In 2002, I published with my co-author, Marco Desresico, a legal text that is still published on an annual basis. It is into its 18th edition. I also teach access to information and privacy and often lecture on it.

On a more immediate level, in my own practice we generate something between 300 and 400 requests a year for a variety of clients and for corporate requirements. I am in contact with several institutions. I have certainly used every trick in the books and have experienced every frustration that a user can possibly experience over time.

As a general comment, I am generally satisfied with the change proposed by Bill C-58. My level of expectation was low and it was met. This includes the proactive publication of information or material by the Senate, the House of Commons, ministers’ offices and government institutions. I also agree with the amendment that would see the Office of the Registrar as well as judicial administrative body release records concerning travel, representational, conferences and hospitality expenses.

As an author of legal texts on access and privacy, I have long proposed that save and except cabinet, no federal institution should be excluded from the act. I previously appeared before the House of Commons Standing Committee on Access and Privacy on April 17, 2016. At the time I presented a brief indicating my concern about providing the Information Commissioner with an order-power capability, transforming her role as an officer of Parliament and ombudsman to one vested with quasi-judicial powers.

I have addressed the same issues in a brief that I circulated yesterday. I noted that in the scheme of things the Information Commissioner sees a very small proportion of the requests. In fact, she sees about 2 per cent of the 98,000 requests; 2,300 are given to her in the form of complaint year in and year out. Only 2 per cent of the overall workload falls in her office. Yet, she has 1.5 years’ worth of a backlog in investigating complaints. This means that users but particularly complainers have to wait a long time before they get the green light to go to the Federal Court to get a final decision to have or not to have access to records, or to receive the records or at least part of the records that they were after. Often it is an expensive and fruitless exercise. In my own practice, I tell most corporations who ask if we can go to court that yes, after we wait two or three years we may be able to have a judicial review to get the kind of decision we are after.

In my opinion, a system audit of the global access regime is needed to ascertain two things: first, whether the 150 federal institutions which receive the 90,000 access requests per year are properly staffed and structured to handle the volume of requests; and, second, whether these institutions are applying the act correctly. At present we have no idea whether or not they do so and whether or not, more significantly, they are capable of responding to requests in accordance with the delays set out in the act and in compliance with this regime of exception.

For this reason, I have recommended, and I recommend it again, that the Auditor General be asked to conduct a system audit of the global ATIP, or access to information privacy system as currently administered by federal institutions and the Information Commissioner, so that broad spectrum solutions can be brought to the access regime.

This is where Parliament needs to invest time and intellectual capacity to see what we are dealing with as opposed to being centred upon giving the access to information commissioner powers over some complaints. I don’t think it will change things, and it might even make things worse because we would no longer have a voice at this committee or in the public media or be, some ways, the advocate and ombudsman that Canadians are looking for in the Information Commissioner. She will be the head of an administrative tribunal and she will be required to act judicially.

[Translation]

Karl Delwaide, Partner, Fasken Martineau DuMoulin S.E.N.C.R.L., s.r.l., as an individual: In 1988, I served as a legal adviser to the Commission parlementaire de la culture of the National Assembly of Quebec, which was conducting the first periodic review of Quebec’s Act respecting Access to documents held by public bodies and the Protection of personal information. Ever since, 40 per cent to 50 per cent of my practice has consisted of representing clients. My presentation today focuses on the practical side of how people experience the application of access laws. In my practice, I am called upon to apply the Quebec and federal statutes simultaneously, the federal act being the focus today, of course. In Quebec, I represent many public and para-public bodies, namely those operating in the trade or financial sectors. Further to the federal legislation, I have had experience representing what are known as third parties. With your permission, I’ll be speaking to the more practical, and less philosophical, elements, but I hope they will provide you with new insight.

I’d like to make clear that I am not speaking on behalf of any of my clients, but solely as an individual.

My remarks will focus on the proposed amendments to the application of the Access to Information Act. I won’t be commenting on the proactive disclosure dimension.

My presentation can be summed up in a familiar saying: Why make things easy if you can make them complicated? I would respectfully submit that Bill C-58 does exactly that. Bill C-58 would give the Office of the Information Commissioner the power to make orders, as per new section 36.1. I am referring to the provisions in the Access to Information Act, not to the clauses in the actual bill.

As I understand proposed subsection 37(1), the orders would not be binding. That is odd given that the Information Commissioner is often likened to an ombudsman, which, on the surface, seems to conflict somewhat with the power to make orders. If the commissioner’s office is to fully perform its ombudsman role, working with federal institutions, on one hand, and requesters, on the other — and even third parties whose rights may be affected by the disclosure of the record — the power to make orders does not really seem compatible with that role. A review in relation to an order made by the commissioner is possible under section 41.

Now, let’s consider how section 41 interacts with other provisions in the bill, specifically new subsection 36.1(4). Let’s do a bit of math. Imagine the average person trying to work out the time limits prescribed in section 41. The federal institution has 30 days and the requester has 30 days, and the third party that could potentially be affected by the disclosure has 10 days after the first 30-day period has expired. That would require ongoing monitoring.

I’ll give you an example. I won’t name the client, but I do have their permission to discuss a case that is currently pending at the court of appeal level. We made our submissions in early November and the matter was reserved. I don’t want to get into the merits of the arguments, just the facts of the case. A request for information was sent to the third party, our client, in November 2005. The third party made representations, pursuant to sections 27 and 28 of the act, in January 2006. We are talking about 2005 and 2006. Next thing you know, in July 2012, six years later, we receive a letter from the Office of the Information Commissioner of Canada advising us that a complaint was reportedly made in 2005 and that the commissioner was investigating and therefore looking for the representations made by the third party in 2012, six years later. Then, complete silence. April 2016 rolls around and we receive a letter from the federal institution advising the client that it is about to disclose information that, up to that point, it had endeavoured to protect. The record in question belongs to the third party.

That was in 2016, a decade later, and we had no idea where this was coming from. I contact the federal institution only to learn that the commissioner’s office had submitted its report, as per the notice required under section 37 of the Access to Information Act — the section being amended by this bill — in February 2016. I never received a copy, nor did the client. The federal institution sends it in May 2016. We receive the report to which the third party was entitled, under subsection 37(2), in August 2016.

You will notice that the Access to Information Act contains a series of rather tight time limits: 30 days to notify the third party, 20 days for the third party to make representations, and so on. The commissioner’s office, however, is not subject to any time limits.

Regardless of the judgment the Court of Appeal may give as to whether the delay is acceptable, I suggest to you that such a situation makes no sense in a society like ours. Imagine the situation, within 10 years or even six years, at the time, when we heard from them in 2012; key employees had left their positions, and documents had been destroyed under document management policies, which are common and normal in companies — not to mention acts of bad faith. When you get to Bill C-58 with the proposal to calculate the time limits in relation to when the Office of the Commissioner would have sent its report to the third party, how do you expect the third party to be able to follow the process? It’s beyond me.

My presentation may be more technical, but it is intended to give you a very practical sense of the application before federal institutions and the Federal Court. The Access to Information Act is intended to give all Canadians a right of access, and no one objects. However, a balance must be struck. Third parties also have the right to protect their confidential strategic information, which is recognized by the act in section 20, but third parties must be able to do so in a reasonable manner. I agree with the argument that anyone applying for a permit or authorization from the government should expect the fullest and most complete transparency. But it’s important to remember that few sectors of the Canadian economy are unregulated. So it’s a somewhat convoluted argument. The legislation is intended to protect the strategic information of third parties, so the means must be provided to do so.

I will conclude by giving another example. If you want to simplify the process, instead of a provision like the one in subclauses 37(1) and 37(2), which imposes cascading notices on the Office of the Information Commissioner, first on the government institution and then, eventually, on the third party — resulting in applications like the one I just gave you, where the government institution is notified in February 2016 and the third party in August 2016 — it would be very simple to indicate that the Office of the Commissioner must notify all interested persons at once and to impose a single deadline on a party that would be dissatisfied with the office’s recommendation and bring it before the Federal Court. You would avoid headaches this way.

I should thank you, because clients will keep coming to us. But I think the goal is to make sure that clients know what to expect.

To wrap up my theme “why make it simple when you can make it complicated?,” there is a way to simplify the application of the Access to Information Act, and that is what I invite you to do today, respectfully.

The Chair: Thank you very much, Mr. Delwaide.

Senator Dupuis: I would like to thank all three of you for appearing before us today. Mr. Geist, could you elaborate on the fourth element? You said that the access request registry would be eliminated after two years. What would be the impact of such a measure? If we do a review in one year and then in five years, doesn’t that pose a problem for the quality of the evaluation, because some of the information wouldn’t be kept? You said that we have a duty to keep documents, not just the right to access them. If people have a right of access, but the documents aren’t kept, there is no right of access, in practice.

[English]

Mr. Geist: Thank you for that question, but let me back up for a second.

At one point in time there was something known as CAIRS, a system wherein all requests that had gone into the government were logged. It was not publicly available, although there was a professor who started actively seeking information that was added to this list and then making it available. It was a workaround to provide some amount of transparency.

I should note that knowing what has been requested, or even more what has been completed, is very useful to people because it allows them to ask for a request on an informal basis for the records that were disclosed. From a system perspective it is also very useful because it can reduce a lot of duplication. If I ask for a request just completed, it can save everybody time and money by getting that same request.

CAIRS no longer exists. As part of the Open Government initiative, we now have a site at open.canada.ca that lists completed requests. What happens is that they retain completed requests for only two years. After two years, anything in the database disappears. It’s on a clock.

I suspect the reason is that for archival purposes the government would say they don’t keep the records from this request beyond the two-year process. Technically, that isn’t always true because someone might ask for it on an informal basis a year later, which actually keeps the clock going for a bit.

Beyond that, I would argue that this raises two issues. One is that we ought to be rethinking our archival policies because those premised on physical documents, which we said we would start flushing after two years, make no sense in a world where all documents are now digitized or digital. There is little reason to think we need to start deleting documents after the two-year period.

Even more than that, I would argue that there is value in being able to see what was requested three years ago or five years ago, potentially because you might be able to get those requests and potentially see what was disclosed over time in trends about the kinds of requests government gets. All of that is being deleted as a matter of policy now.

My suggestion was not necessarily a legislative one. It was more an operational one. There ought to be a recommendation that says we ought to change archival policies. We ought to treat this database like we would any other database, that is to say, once it goes in, there is really no reason for it to come out.

[Translation]

Senator Dupuis: Mr. Drapeau, there is something that caught my attention in the document, dated November 21, that you prepared for us. In the second paragraph, you raise the issue, saying:

I hold the honest opinion that we are the early witnesses of a regime that is on a slow. . . descent into irrelevance.

I like the link you make between irrelevance and the work of parliamentarians.

You carry on by saying:

This may be explained in part because parliamentarians are not interested in clearly understanding and examining the organizational and functional structure of access at the federal level, focussing especially, if not exclusively, in recent years on granting “order-power”. . .

If I understand correctly, there is a very significant problem in the way the system works. Instead, we seem to be trying to to increase the power of the system, which is not working very well, when that is something else we should be looking at.

Mr. Drapeau: Madam Senator, I am very pleased to be here today and to see the interest that has emerged from this meeting. I have listened to some of your meetings through CPAC, and I am encouraged by that.

For a number of years, it has been as if the seat of responsibility for access, which belongs to Parliament — It is a quasi-constitutional act that was created and developed through parliamentarians. The commissioner is an officer of Parliament. He speaks on behalf of Parliament, with the power and influence that comes with it.

For a number of years, I have quite frankly believed that the commissioner has taken on a role that belongs to the committee. I have criticized this in the past. As I mentioned in the brief to the House of Commons in 2016, it is not the role of an ombudsman or commissioner to be the spokesperson for changes that need to be made. For example, throughout this time, she has surrounded herself with staff to help her advance proposals. However, this represents a significant amount of work, energy, talent and expertise that could not be devoted to dealing with the backlog of complaints. At that time, there were two years in arrears. Now it’s a year and a half. In short, it has deprived you of that power and interest.

So, I find it unfortunate that this led to a proposal that was effective in its part, which was to give her the power to resolve complaints. There are 2,300 complaints a year, and only 1,300 of them concern a refusal to disclose information. This isn’t asking too much.

In my report to the House of Commons in 2016, I indicated that there were only 28 investigators. What is everyone else doing? There were five managers and about 30 people in charge of administration and management. A balance is needed between the Office of the Commissioner and the institution that takes care of 98 per cent of the requests, and it has to come from here. You have the leadership, power, interest and ability to change things, without amending the act, to promote a better balance.

At the moment, I don’t feel that we have a precise diagnosis to determine what’s wrong. Why, with all these staff, are we not able to respond in a timely manner? The institutions have very important deadlines. They must deliver the goods within 30 days. They have the power to impose an extension. This must be taken into account. The focus in the annual reports is on the worst performing institutions. Meanwhile, the watch dog, which is the Commissioner, is two years behind and has an unlimited period of time to make decisions. I represent companies that tell us they aren’t interested. If we don’t receive the documents within 30 days, we don’t want to file a complaint. Now they are asking more forcefully why we have a commissioner. Why can’t we do what the Americans do when we are told no by the institution? Why can’t we at least have a ramp that would allow us to go to court? They want to achieve a result within a reasonable and accountable time frame. At the moment, this is not the case. We have to wait two or three years before we get a decision that then allows us to go to court.

Senator Boisvenu: Thank you to our witnesses. Your presentations were very interesting.

Mr. Geist, you wrote on your blog that the bill before us is a broken Liberal promise. You also said that proactive disclosure is not synonymous with access to information. Could you elaborate a bit on these statements?

[English]

Mr. Geist: I assume the second issue. I would characterize proactive disclosure as being the information that government decides it wants to make available to the public, whereas access to information is the information the public decides it wants. They are not always the same thing.

[Translation]

Senator Boisvenu: What additional information belonging to the minister or the Prime Minister’s Office should be included in the legislation? We know there are voluntary disclosures, but this is information that I will call “secondary.” If we have to go further, what kind of information should be made available to the public?

[English]

Mr. Geist: To bring it back to where you started with your question, I heard the government talk about an open-by-default and transparent approach. My starting point would be an open-by-default approach. The question isn’t so much what we should be making available. In a sense it is asking what are the very limited number of categories we should not be making available. If one of those boxes isn’t checked, the supposition ought to be that the information becomes publicly available.

My interest in this tends to come from engaging in different policies, as opposed to some of the commercial issues we have heard from some of the other witnesses, and in trying to gain a better understanding of what policy-makers have been actively engaged in. Especially the political level now is largely opaque in terms of what are some of the policy motivations and some of the discussions are. When you start getting into issues of interpretation, this is a critically important part of allowing the citizenry to effectively engage in and to better understand why those policies are being made, what is the intention and then, sometimes years later, what the government intended.

The reason I had asked for the World Intellectual Property Organization treaties in 2012 was that we were still debating how to effectively implement them almost 20 years after they were signed. A better understanding of what was taking place at a political level, and certainly at a policy level, would be very helpful in terms of modern-day interpretations as we seek to implement. Much of that information is either lost or not made available at all.

[Translation]

Senator Boisvenu: Four or five years ago, Canada ranked forty-seventh among countries in terms of modern transparency or access to information. Today, we rank fifty-first or fifty-third, I think.

The Chair: We’re fifty-fifth.

Senator Boisvenu: That’s even worse. The act will be revised in five years; at that point, will we rank sixtieth or twentieth?

[English]

Mr. Geist: One would hope we would reverse that. Of course, it depends a little on what other countries are doing in terms of our relative rank.

In many countries there is momentum for more of an open-by-default approach, both in terms of greater confidence in government policy-making and in government itself. Some of this information is really valuable, not necessarily from a policy perspective, but sometimes from a purely commercial perspective. As we move toward more machine learning and artificial intelligence, we see people trying to leverage the information contained within government and seeking to find ways to extricate it out of government so that the private sector can make better use of it, sometimes for commercial purposes and sometimes for other purposes.

That ought to be a real goal of what we’re trying to do. There are many countries seeing the benefits of trying to do that. We are still really slow. What you are hearing from witnesses is an ongoing frustration from just about anyone who has used the system in terms of the ability to get information in anywhere near a timely manner.

[Translation]

Senator Boisvenu: Mr. Delwaide, I’m going to ask you a question, and I invite you to feel very comfortable answering it. When the minister came here to testify, she was convinced that this legislation would solve all the problems related to access to information. We asked her what the next problem would be that she’d address after the passage of this legislation, and she replied that she felt the biggest problem was the delays.

I listen to people, and you are a very important witness on this subject. Is this bill focusing on the wrong target, since you are telling us all that the major problem right now is the delay? Should this bill have addressed time management rather than the management of the type of information available, which is already available?

Mr. Delwaide: In practical terms, I won’t do an exegesis, but I have noted all the delays. Generally, they don’t exceed 30 days. When a federal institution needs more than 30 days, it must notify the Office of the Information Commissioner.

From experience, when clients inform us that they have received a notice to the third party, that they represent a company indirectly affected by an access to information request — be it from the Canadian Food Inspection Agency, Health Canada or Transport Canada, regardless — and a third party has provided information about the client, the government institution will notify the third party. This third party comes to meet with us and has a very short time to respond. In principle, the act already provides a framework for these time limits, and even for decision-making by the federal institution. Where there is a gap, it is what happens before the third party receives the notice from the federal institution. In other words, it is the time that the government institution takes between the time it receives the access request and the time it finds the relevant records and identifies them and then notifies the third party.

I have no idea what this delay represents, but from experience, just with the file number — it is standardized across the federal administration — suppose that I receive the letter in 2018, I see it says “A-2016,” it means that the request was entered in 2016. I don’t understand why it took two years for my client to receive the notice to the third party when in principle the legislation dictates a 30-day period. There is a possibility to extend the deadline, but not over a two-year period. Once the third party has made its observations, the file is lost in the fog.

It has even been said that, when the federal institution doesn’t give us news, this is a good sign. This means that it has accepted our observations. I don’t know if you understand. We make written comments. We receive the notice to the third party, the third party tells us that they have strategic information to protect, trade secrets or confidential information, whatever, and we make our observations within a very short period of time. Twenty days is what is required by law.

A delay is negotiated with federal institutions. When we receive the notice on December 15, at some point, everyone is gone, and we try to negotiate a deadline, but I can tell you from experience that federal institutions are very strict. They won’t give us three months, but 10 or 15 days. Then it disappears into the wild, and we don’t hear about it anymore. Good, because that means the client won.

If there is a complaint to the Office of the Information Commissioner, it takes as long as it takes. As Mr. Drapeau pointed out, the Office of the Commissioner has limited resources. Whether it is the requester who wants an answer or the client, third parties who are companies, everyone wants to know what’s happening with their information. Will they be protected? I would tell you that this is the before and after. Under the act, if you do the exegesis — and you have researchers who can confirm it, I’m sure — if you want, I can tell you the articles, but you’ll find that it’s quite well regulated. However, before and after, it is no longer. It’s no longer before, it’s no longer after.

Senator Boisvenu: Thank you.

[English]

Senator McIntyre: Thank you for your presentations. You have all made very clear that a lot of departments fail to post summaries within the 30-day delay, with some not even posting them at all.

Who are the worst offenders: Health Canada, Transport Canada, Employment and Social Development or the Canadian Food Inspection Agency, to name a few?

Mr. Drapeau: The top offender is the RCMP, followed by Revenue Canada. There are a couple of others, but Access to Information publishes the list on a yearly basis. They don’t change very much. Some of them have a high volume. Immigration Canada has a very high volume of requests, one of the highest. Depending on what you want to measure, how late they are is difficult to say. How many complaints are being filed against each organization is easier to say. Then you can say what are the most complained-against organizations. It’s a question of volumes.

With most requests that we receive now in my own practice, almost automatically the institution would authorize an extension of 30, 90, 150 or 240 days. With the rules we have in the office, if it’s 150 days we don’t even blink. We tell the clients to be patient. There is no sense to complain, not with a 1.5-year backlog. If I complain, it will take me two years to get the answer. With 150 days we don’t even blink. If it’s more than that, we communicate with the institution to ask what is the matter, what we can do or whether we can get a portion of the records beforehand?

It begs a question as to why we have 30 days. Is 30 days a reasonable standard? Would it do damage if we were to say now an organization will have 60 days but we’ll hold them to it? At the moment we have 30 days. The vast proportion of requests, if you look at the statistics, are released within 30 days. Those are the simple pedestrian type of requests that requires photocopying, no exemption and so on.

On behalf of the institution, those requests that require clear demarcation as to what is private, what needs to be protected, what needs to be exempted and excluded, that takes time, particularly if you have a request that calls for 200 or 300 documents.

Maybe the act is too demanding and the demand is not being met. That is something we ought to look at. That is why I say you need to have a wall-to-wall system audit to see whether the institution is equipped, structured and staffed to do the job. I don’t think they are, first and foremost. If we could address this, maybe we the users would get better service.

Mr. Geist: I want to make sure we distinguish between the delays in fulfilling a request and the delays in notifying the public that a request has been fulfilled. It really strikes me as something that should be a complete non-issue but as it turns out is not.

The experience you have had reflects mine as well. I have no expectation, on almost any request that I ever put in, that it will come in within 30 days. If you get it within a half year, you’re generally feeling pretty good. This is obviously out of sorts with the system. I don’t see that as a legislative issue. I see it as a resource/financial issue. We don’t have to fix the law. We have to put in a sufficient number of resources to make this happen.

I am sure your experiences would be similar to mine. What invariably happens is that departments get a bit of money so they bring in an extra analyst on contract for a period of time who works on your file for a period of time. They’re off before it gets completed. Then someone else comes in, and it feels like you start from scratch. Sometimes you’re starting for years.

As part of my opening remarks, I was referencing something even simpler which is inexcusable. I am not even talking about the 30-day delay or the 30 days they have under the law. I am talking about the commitment the government has made under Open Government that every 30 days they will disclose completed requests.

I did a blog post on this in June of this year. I will just quote it:

 . . . despite the promise of posted summaries within 30 days of the end of the calendar month, many departments are months behind . . . Last year, 21 departments posted 300 or more completed requests. Of the 21, nearly a quarter have not posted anything in months.

Health Canada was almost a year behind posting anything at all. Innovation, Science and Economic Development, CFIA, and Employment and Social Development were all months behind as well.

This week I was looking up the Copyright Board of Canada. They haven’t posted anything since December 2016. We are not talking about fulfilling requests. We are talking about telling the public what they have posted or completed so that the public is in a position to make use of the informal request system. If they want to know what was disclosed, they should have the ability to simply make an easy, free, informal request for that information. You can’t do that if the departments aren’t at least disclosing what they’ve completed.

Senator McIntyre: Mr. Geist, you indicated that the PIPEDA five-year review was a failure, and Bill C-58 is a failure. There is no difference between the PIPEDA five-year review and Bill C-58.

They are both trash, right? Is that what you’re saying?

Mr. Geist: I think you said that. My point wasn’t to describe the bill as trash. It makes some incremental improvements. My point was to say that hanging your hat on the notion that somehow this is an ongoing process and a five-year review will ensure that we regularly update the legislation is counter to the experience I have seen.

In the case of PIPEDA, we had the first review in 2006. Legislation on the data breach disclosure rules actually took effect on November 1, just three weeks ago. They came out of the 2006 hearing, so we’re talking about 12 years from when the hearing began until when the legislation took place.

It didn’t get any better in 2011. Five years later the government of the time did not even bother to hold a hearing on it. The minister at the time, James Moore, was asked where is the review by the Ethics Committee, and I believe his response was, “I am here; ask me questions.”

[Translation]

Senator Dalphond: I clearly understood from Mr. Drapeau’s presentation that he’s opposed to the idea of the commissioner having powers to make orders. I understand that Mr. Delwaide shares this position. Do you, Mr. Geist? Do you think the commissioner should not have the power to make orders?

[English]

Mr. Geist: No, I would like to see the commissioner have order-making power. The same is true with the Privacy Commissioner who ought to have order-making power.

One of the points I took from Mr. Drapeau was that it should not be the role of an ombudsman to essentially be spending their time critiquing the legislation. I think that’s right. That is true whether we’re talking about the Privacy Commissioner, the CRTC, or a range of other agencies. Their role is to implement what Parliament does. It is the role of Parliament to make sure that it gets that legislation right and regularly updates that legislation.

I suspect the former Information Commissioner felt hamstrung by the legislation and the lack of action. They felt the only way to get this issue moving was to generate some public attention, and hence they jumped in on that issue.

I understand why that happened. I also understand the position but, generally speaking, we would prefer people in that position apply the law as opposed spending their time trying to lobby for changes to the law or to advocate for changes to the law. That’s different from ensuring that the Information Commissioner can be effective in applying and interpreting the law. Order-making power might well assist in that regard.

Senator Gold: My question is for all three of you.

We have heard a lot of witnesses express dissatisfaction with this piece of legislation. Our job is to try to suggest improvements where appropriate. What are the top three amendments you would recommend that we consider?

Mr. Drapeau: As I said, you are navigating in the dark. You don’t know what change ought to be made and whether those changes will bring about the results you want.

Delay is an issue, but you have to ask yourself a question as to why the delays. There may be a very legitimate reason for it such as either the volume of work or not having the required amount of trained staff. There is a problem right now within the ATIP family to try to get skilled and experienced individuals.

Are the delays reasonable, given that there is an increased appetite for access requests? I am not advocating that we have an open-ended time frame to answer some requests, but are 30 days really what we’re after? I would rather have a promise that it will be done in 75 days and get it than not have 30 days and having a complaint mechanism that doesn’t work.

I am saying that in some way you are shooting blanks in the dark. This act will add more pressure on the system, and you don’t know collectively whether or not the system is able to respond to it. I submit that the system is not capable and has not shown to be capable of responding to current requirements. Now you are asking the Senate, the House of Commons and the judiciaries to be held accountable for disclosing records, and you do not have the finances or resources to look at if the regime itself is capable of responding. That to me is a failing.

Mr. Geist: I am happy to give you three. First is a public interest override. The exceptions are already too strict, so you need a public interest override to identify instances where even when an exception might apply the information should be made available.

Second is a binding order-making power. One of the ways to ensure that there is effective application is to give the commissioner that power.

Third is removal of all fees so that you open up the system to people and make more accessible.

[Translation]

The Chair: Mr. Delwaide, do you want to add anything?

Mr. Delwaide: As I said in my opening remarks, there is a way to tie everything together in clauses 36.1(4), 36.3 and 37. With respect to all those time limits, interested parties should be notified as soon as a complaint is filed with the Office of the Commissioner. The parties should be notified whenever a report is issued by the Office of the Commissioner and they should have the same time limit to file for review before the Federal Court. This is not the first time for the courts to have two appeals filed at the same time. The appeals will be put together and heard by one judge. This is my first suggestion.

My second suggestion is sort of more technical. I invite you to refer to section 44.1 of the act, as amended, which sets out what is recognized in case law. In other words, it is understood that the remedies provided for in sections 41 and 44 are heard and judged as a new case. Since this is a new hearing, I send a letter to the government institution on behalf of a third party. My letter raises one or two arguments. However, if I am not successful before the government institution, I can go to the Federal Court, and I can bring all the evidence I want.

The question is this: depending on the time limit, when is the evidence assessed? At the time access is requested and comments are provided by the third party? At the time we are before the Federal Court two years later, or even on appeal five years later? I’m telling you, this is very practical. In Quebec, for example, the Commission d’accès à l’information has decided that, when it considers a request for review filed by an interested party, the time is determined when the access to information request is made, not two years later or one year and a half later.

I have had an experience where, three or four years later, because of the delays, I was asked what the problem was for my client because he had four years of protection and it was no longer relevant today. At that point, it becomes a reward for delays. We are rewarding delays. I think that should be clarified.

My last point is still sort of technical. Take a look at the wording of clause 36.3 of the bill. The wording is as follows:

Notice to third parties

36.3 (1). . . the Commissioner shall make every reasonable effort to give the third party written notice of the Commissioner’s intention.

The same wording is found in clause 27. What does “make every reasonable effort” mean? Does it mean taking the documents that he or she has traced, putting them in an envelope, sticking on a stamp and sending them to the third party with the generic letter that you get from everyone?

You know what? The Supreme Court interpreted it in the Merck Frosst decision, which is sort of the landmark decision in applying the act when it comes to the rights of third parties. The court held that the government institution must initially look at the documents and determine for itself whether there is any information that could be harmful if disclosed immediately. Do you realize the impact that that can have when we are talking about technical and scientific information? Public servants, in good faith, are not in a position to assess whether the information they are about to share — because they may decide to share information without notifying the third party — will have a significant competitive impact. I have seen clients who told me they received the information; 25 pages were released immediately or, in other cases, 150 pages were released immediately. However, upon review, some of those pages contained information that was very harmful to them, but it was too late because it had been provided. People in government institutions are not in a position to assess the impact.

Senator Dalphond, I’m sorry for interrupting you, but you are familiar with procedural fairness; it is simple, because it is “shall notify the third party.” It is not “shall make a reasonable effort,” but “shall notify.” With all due respect, it is not up to federal public servants to decide whether or not section 20 applies. I apologize for being technical.

The Chair: No, I think senators understand the implications, given the number of hours we spend understanding the ins and outs of the bill.

Senator Carignan: You answered the question I wanted to ask, but I would like to ask you another one about the duty to document.

We have seen practices in some departments where decisions are made without any documentation to support the decision. It seems that meetings are being held, that positions are being taken, but that there are no supporting documents. We have seen examples of people who have previously testified that they have requested access to documents related to the decisions made, but it is as if the decision was made out of thin air. We are looking for the rationale behind it.

Do you think there should also be duty to document a decision made by a public government institution?

[English]

Mr. Geist: Yes is the easy answer to that. It was one of the issues highlighted by many civil society groups that came together to write a letter on the particular issue.

My own experience reflects the value of documentation in the decision-making process. There have been times when you file a request to better understand how what you got and what you didn’t get were arrived at. Sometimes it can provide insight and other times there is nothing there. It’s entirely possible that you just don’t get anything. There is no answer or explanation as to why, and I don’t think that’s good enough.

[Translation]

Mr. Drapeau: Absolutely, but how do we ensure that this is done? Today, in many large departments, people make decisions knowing full well that nothing will be written down on paper, that the decision will be made verbally and will be communicated, precisely in order to avoid leaving any traces or records.

How do we impose that duty? Are you actually able to ensure that this duty will be fulfilled?

The Chair: Mr. Delwaide, do you want to answer Senator Carignan’s question?

Mr. Delwaide: The only comment I could make is that we have seen in the literature that passing access to information legislation had a perverse effect. It led government institutions to document fewer of their decision-making processes in writing, because it exposed them to public disclosure. So the answer to your question is yes. Yes, they should be encouraged to document decisions. I do not think the purpose of the Access to Information Act is to hide the decision-making process behind closed doors without written follow-up. However, how this is done is another matter, and I have no suggestion on that.

[English]

The Chair: Thank you very much, Mr. Geist, Mr. Drapeau and Mr. Delwaide.

When the commissioner appeared, she requested an amendment to the legislation to allow the certification of her orders. Would you support the recommendation to give her more power in her decision to make the administration release the information?

Mr. Drapeau: If required, but is it to support more bureaucracy, more steps, more delay and so on? It should be sufficient if the Information Commissioner has been given powers according to the law. If it’s insufficient, then we have an issue.

Mr. Geist: As you heard me say earlier, I am strongly in favour of increasing the powers of the Information Commissioner, and that’s one way to try to do that.

[Translation]

Mr. Delwaide: I don’t think the system as designed allows that. You have a power to make orders that is not binding. The government institution may not comply with it. You have the power to make recommendations. A non-binding power to make orders is the same as the power to recommend. Incorporating the power to make orders is redundant. If you maintain the power to make recommendations, the system already exists. Eventually, the legislation leads to appeals by independent courts. Section 2 of the act provides for that.

The last point is that if you want to give the Office of the Commissioner the power to make orders, you have to review the structure of the legislation, because at that point you are turning it into a quasi-judicial body; an administrative tribunal, I agree. You would have to restructure the act completely so that the rights of the parties — whether the requester, the government institution or third parties — are expressed in a much more binding and structured way. That is not how the act is built. You can change it completely, but as it is designed, it is illogical to give the Office of the Commissioner the power to make orders.

The Chair: Thank you for your comments; they give us useful food for thought.

[English]

Thank you so much for making yourselves available to help us to continue our reflections on this very important legislation.

[Translation]

Thank you, Mr. Geist, Mr. Flag and Mr. Delwaide.

(The committee adjourned.)

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