Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 57 - Evidence - March 20, 2019
OTTAWA, Wednesday, March 20, 2019
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:25 p.m. to proceed to clause-by-clause consideration of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I’m pleased to welcome you this afternoon to continue our clause-by-clause consideration of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts.
You’ll recall that we had started our study of the various amendments related to the first clauses of the bill. We were at clause 6. However, before we continue with this specific point, I want to draw your attention to the fact that we received a letter on March 5 from David Lametti, Minister of Justice and Attorney General of Canada. The letter concerns three commitments that he made during his appearance to provide additional information. I want your agreement to append the minister’s letter to the proceedings.
[English]
Is it agreed, honourable senators, that we append to the proceedings of today the letter from the Minister of Justice in answer to questions that were put to him?
Hon. Senators: Agreed.
The Chair: Also, before we continue our study of Bill C-58, clause 6, I have received information from officers of the Treasury Board that were in attendance at our last meeting. You will remember that we have had the pleasure to have Ms. Ruth Naylor, Executive Director, Information and Privacy Policy Division; and Ms. Elizabeth Grace and Hélène Aubé from Treasury Board, who are in attendance in the room. And also in attendance today are, from the Privy Council Office, Mary Rassi and Riri Shen; and from the Department of Justice, Ms. Adair Crosby and Sarah Geh, Senior Counsel.
[Translation]
We’re also joined by the Senate legal counsel: Catherine Beaudoin, Acting Deputy Law Clerk and Parliamentary Counsel; and Marc-André Roy, Parliamentary Counsel, Office of the Law Clerk and Parliamentary Counsel.
[English]
The reason I asked Ms. Naylor to be at the table before we continue our debate on clause 6 of Bill C-58 was that Ms. Naylor realized she might want to bring additional information to the answer she gave to a question from Senator McCoy. I think for the record, it would be important to have that information because it clarifies an element of the act that we discussed two weeks ago.
I think it will be important that it be part of the proceedings today because it refers to previous discussions we have had. As I say, those who will have the responsibility to do the interpretation of the act in the future might benefit from the information that will be on the record today.
I invite Ms. Naylor to take the floor.
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Treasury Board of Canada Secretariat: Thank you very much for the opportunity to clarify two of the answers, in fact, that I gave at the last meeting of this committee on this bill.
The first relates to a discussion that was had here about the effect of section 9 of the Access to Information Act, which deals with time extensions. The chair posed a question to me then and asked if the dynamics of this provision are, in fact, helping the administration of the act. I responded that that was always our intent.
When I had a chance to review the transcript of that discussion, I saw from the comments that committee members made that followed that my response may have been taken to mean that our focus is to serve the administrative convenience of government institutions. I wish to clarify that within the access to information community in the federal government, when we use the phrase “to improve” or “to serve the administration of the act,” we are talking about making it work better for the requesters and to improve the overall functioning of the program so it can better achieve its overall objective. So we use the phrase “improving the administration of the act” in a very broad sense — talking about improving how it works for requesters and to achieve better transparency.
The second point where I realized my answer confused the conversation — I think I created a misunderstanding — was in the discussion of the proposed provisions to suspend the time limit to respond to a request, while the Information Commissioner would consider a request to decline to act on the request. My attempt to explain how the 30-day time limit would stop while the Information Commissioner considers a request to decline to act and then resume once the Information Commissioner communicated her decision to the government institution, I think, was not clear from reading the transcript. To assist committee members, I would like to provide an example.
If an institution sends a request to decline to act on a request to the Information Commissioner on, let’s say, day 15 after receiving that request, the 30-day time period for responding to the request is suspended from the day that request is made to the Information Commissioner. The time period does not restart; it resumes on the day the institution receives the Information Commissioner’s decision in writing. The day the Information Commissioner’s decision is received would then be day 16 of the 30-day time period, and the institution has until day 30 to respond.
So the overall time limit remains 30 days or more if any extension is taken in accordance with section 9, and that doesn’t change by virtue of the amendments that were made at the last meeting.
The Chair: Thank you.
Are there any questions for the witness before we move to clause-by-clause consideration?
Ms. Naylor: Do you wish me to stay at the table at this point?
The Chair: No, you can withdraw. Of course, during the course of our debate, if you feel you might want to provide honourable senators with additional information on the interpretation of the bill, raise your hand in the back and we will invite you to the table. We know you’re instrumental in this process, and we don’t want to appear that we are against the administration. We’re trying to do our best job as legislators, and your interest in that is of paramount importance. Thank you, Ms. Naylor.
Honourable senators, is it agreed that we continue our clause-by-clause consideration of Bill C-58?
Hon. Senators: Agreed.
The Chair: We were on clause 6 of the bill, at pages 3 and 4. In relation to that portion, we have two amendments to discuss: one by Senator McCoy and one by Senator Carignan. Do you have all the text of the amendments, honourable senators? They’re marked EM1 and C-8. EM is for Elaine McCoy, and C for Carignan.
I will paraphrase the amendments. They deal substantially with exactly the same issue but with different time limits. That’s why I think you should have the two together, because you will be called upon, of course, to make a decision.
We are on page 4 of the bill, titled “Notice.”
[Translation]
I’ll ask Senator Carignan to present his draft amendment. We’ll then have a general discussion.
Senator Carignan: The goal is to ensure that the extension of the time limit for responding to requests may not be for more than 30 days, which makes the time limit a maximum of 60 days. This is a recommendation for the change requested by Ms. Maynard, the Information Commissioner. This point was also raised by Mr. Giroux, from the Fédération professionnelle des journalistes du Québec, and by Philip Tunley, from Canadian Journalists for Free Expression. Senator McCoy also included this point in her proposal. She was also talking about 90 days. We verified the procedure at the provincial level. In Quebec, the time limit is 20 days to respond and 10 days for an extension. In Newfoundland and Labrador, the time limit is 20 working days. A reasonable extension can be granted, but with the information commissioner’s permission. There must also be justification criteria. In British Columbia and Manitoba, the time limit is 30 days. In Ontario, the time limit is within a reasonable time frame. There must be a motive.
We find that, to ensure some consistency with the procedure in the provinces, a 30-day time limit would be acceptable. I think that we need to look at an extension. On a more anecdotal note, after submitting an access to information request to the Privy Council Office on June 5, 2018, I received a response on February 28, 2019. In addition, my question wasn’t answered. I was told that the consultation process had started and that, to date, no response had been received. So for now, they’re still searching. Just imagine, several months later, I was told that the work on the file had started. I think that’s unacceptable. If we want an open and transparent government that provides information, we must have a maximum time limit for responding, and a 30-day extension seems justified.
[English]
The Chair: Should I invite Senator McCoy to speak, because it’s exactly to the same points? Senator McCoy is proposing 90 days.
Senator McCoy: Thank you. It’s a slightly different approach. I add a subsection. But you’re right; we’re in agreement. It is a question of being practical. I was being a little bit more charitable than you, I think, but I personally would prefer to see a shorter time limit. On the other hand, you do know that consultations often have to go on amongst the civil servants. Sometimes it’s just not feasible to get around and talk to all of them. I thought I would propose something that might leave a little elbow room, 90 days, but if we were to accept Senator Carignan’s amendment, I would be pleased to vote in favour of it.
The Chair: Comments or questions?
Senator Ringuette: At our previous meeting, you will remember that we removed the issue of specified time, records and so forth. That was bringing some focus in regard to the research that had to be done in the first place.
I’ll give you an example that I received when I questioned the time limit. The Canada Border Services Agency recently responded to a request that required the review of 14.8 million pages of records. I understand that you are looking at what is currently within the provincial scope. I will remind you that Ontario and Nunavut have no time limit, as does Newfoundland. Saskatchewan and the Yukon may also extend to 30 days.
There is an issue of being reasonable, considering the number of requests that the different departments receive and the number of records they have to go through in order to provide the information requested. Therefore, I don’t agree with these two proposed amendments. I think that they are unreasonable in regard to the time frame, the number of requests and the amount of paperwork for the researcher to provide the information to the requester.
Bearing in mind that 12 months after this bill receives Royal Assent we will review what has been done under the proposed regime and see what the timelines are within what is being proposed in Bill C-58, and what has happened in the system, maybe we could include an observation in our report. That is, we would like to see a shorter time period to provide the information. When we review the impact of Bill C-58 in this system, maybe we will agree.
At the last meeting, when we removed the specificity of the records that were sought, it created an additional research scope. I honestly believe that either 30 days or 90 days is not adequate, considering the slate of records being sought. We could draft an observation, but I think these two amendments are unreasonable on the system.
The Chair: Thank you.
[Translation]
Senator McIntyre: I support Senator Carignan’s amendment. I think the idea is to impose a maximum time limit of 30 days, in the event that the head of the federal institution wants to extend the initial time limit. Moreover, I believe that this amendment is related to a question asked by Senator Boisvenu on November 21, 2018. The question was addressed to Karl Delwaide, a partner at Fasken Martineau DuMoulin. Mr. Delwaide very clearly responded that time limits don’t exceed 30 days and that, when a federal institution needs more than 30 days, it must inform the Office of the Information Commissioner. Naturally, he was talking about the situation in Quebec.
Senator Dupuis: I have a question for Senator Carignan. When you made the link between the different provincial jurisdictions, did you say that the time limit was quite short? In general, we’re talking about 30 days?
Senator Carignan: With the possibility of an extension that varies according to the provinces, but often the extension seems to be — Not the standard, but maybe the practice.
Senator Dupuis: But I was also struck by how you added that a number of cases involved a 30-day time limit and the possibility of an extension within a reasonable time frame. Is that correct?
Senator Carignan: That’s in Ontario only, and there must be a motive for the extension. It must also be authorized, obviously.
Senator Dupuis: I’m trying to understand your reason for stopping at 30 days instead of establishing a 30-day limit, plus the possibility of a reasonable extension.
Senator Carignan: It could also have been 29 days.
Senator Dupuis: Or 42 days.
Senator Carignan: Or 42 days. I think that it’s important for citizens to see consistent time limits when they deal with a government and make an access to information request, so a request of the same nature. For example, if the time limit is 30 days in Manitoba, 30 days in British Columbia and 20 working days in Newfoundland and Labrador, but with an extension, the time limit seems to remain in the same range. This is manageable.
Senator Dupuis: I have a side question to follow up on your point. Have you considered that there may be a difference between the amount of information requested — Because I fully understand the perspective. The citizen makes a request. If we submit a request to the provincial and federal government, it makes sense to have the same time limits. Does anything in your research justify, or fail to justify, that the access to information request involves more information when we deal with the federal government as opposed to a provincial government?
Senator Carignan: I think that we need to be careful with the figures. There are more requests at the federal level because there are more documents, people and services. That’s one aspect. We mustn’t forget that most of the requests came from the Department of Immigration, and these were requests to access files so that people could present their cases. We’re talking about several tens of thousands of requests, so I think that these requests should be set aside in the calculation. However, as for the rest, my June 5 request was quite simple. I requested the communications regarding the appointment of the Clerk of the Senate and the clerk’s appointment process. There was some discussion concerning the matter. The request was submitted on June 5, 2018. The responses came on February 28, and they’re still searching. It’s strange.
Senator Dupuis: I was trying to understand your point. I agree that federal immigration involves more information, and that if we make an access to information request, given the nature of the request, more information will be involved.
Senator Carignan: I don’t see the difference. We’re currently studying Bill C-69. We can see that the environmental assessments at the federal level are more or less equivalent to the BAPE assessments in Quebec. The scope is fairly similar. This doesn’t shock me.
Senator Pratte: I completely support the idea of a ceiling. I fully agree with this. I think that the federal machine is far too used to extending and continuing to extend the time limit until the information sought is no longer relevant. I’m wondering about two possible time limits. The fact remains that the federal machine is used to having no ceiling. You must agree that it’s quite a big machine. Is 30 days a little short? I would be more in favour of 90 days, but I have the impression that it’s a lot to ask the machine to go from no ceiling to 30 days. However, I won’t fight hard over this. The important thing is to establish a ceiling. In requested — Senator Carignan, I don’t know whether you’ve considered the impact of this. Honestly, I’m not sure myself because I’m not familiar enough with the legislation. However, I gather that, if an institution doesn’t respond on time, it’s considered a refusal.
Senator Carignan: It’s considered a refusal, and I can see it here. It’s not quite a refusal, because they’re still searching and, if they find documents, they’ll send the documents to me, and they informed me of my right to file a complaint within 60 days. Technically, it also becomes an extension.
Senator Pratte: But won’t having a so-called short time limit — because I’m not sure whether the time limit is too short — of 30 days increase the number of refusals, because the institutions will say that, in any case, they can’t respond in 30 days, so — I don’t know.
Senator Carignan: I don’t think that’s setting the bar too high. You know, we saw that, as a result of the Jordan decision, the courts ordered the trials and the implementation of the necessary resources. At some point, if the government really wants to be a transparent government that communicates properly, it will take the necessary steps to achieve its objectives, as other provincial governments do.
It’s a matter of will. A $20 billion deficit was announced yesterday.
[English]
The Chair: May I float a proposal that could be a compromise, no strings attached, as one would say?
I understand the need for deadlines, but in terms of transition, as Senator Ringuette mentioned, would it not be possible to maintain the capacity for an extension that would be based on motives?
[Translation]
Senator Carignan: I’m afraid that the same results will be obtained. In the end, a compromise could be reached. The time limit can be extended to 60 days. The idea is to have a ceiling. Whether the time limit is 30 days or 60 days, I’m comfortable with the ceiling. The idea is to send the message that it’s not acceptable to take eight months to provide a response to a fairly simple request. We must send the message that all this needs to stop.
[English]
The Chair: Is there a province whereby there is a limit with the possibility of extension based on reasonable grounds or grounds that have to be explained? In other words, they can’t just say no. If they say no, they have to explain why they have not met the deadline of 30 days or 20 days.
[Translation]
Senator Carignan: For Newfoundland and Labrador, a reasonable extension is possible with the information commissioner’s permission. The request must be submitted within 15 days of the receipt of the access request. In British Columbia, it’s 30 days or with certain set reasons, with the commissioner’s permission. It’s not automatic. In Manitoba, it’s 30 days or more, with the commissioner’s permission and certain set reasons. There’s the concept of having the commissioner’s authorization to grant a longer period if certain criteria are met.
[English]
The Chair: If there is a deadline and for XYZ reasons the administration is not able to meet the request under the deadline, having as a safety valve the capacity for the administration to explain the reasons to the commissioner seems to be a realistic balance. Again, I’m just trying to help the discussion here. I’m not proposing an amendment. The chair doesn’t propose amendments.
Senator McCoy: We would need you to write the amendment.
The Chair: I’m trying to protect the objective, which is a deadline. I’m also trying to take into account the point raised by Senator Ringuette, which is that in some cases the amount of work is so mammoth that there has to be a capacity to deal with that situation. If there is information given to the commissioner explaining why, then there is a balancing that, in my opinion, meets the objective.
Senator McCoy: I think you would need another amendment to make any extension subject to the Information Commissioner’s approval, and at that point your scheme would work. That’s a reasonable approach, except you would then need to give resources to both the agencies and departments in order to respond to information requests, as well as more resources for the Information Commissioner because she just does not have the staff to handle every request.
One of the things that struck me once I began into inquire into this regime or practice, and knowing it’s so fundamental to our democracy, never having had to use it but discovering how it is being put into practice now, is the culture of delay. It’s endemic. I talked to practitioners; I talked to everyone. People who are just asking for innocent information on a regular case-by-case basis for their clients say they count on getting the information back between two and three years if they are lucky. That’s not helpful. We need to say that’s not the way this system is supposed to work.
I’m struck by a practical suggestion made by Senator Ringuette. In the one-year review, it would be very helpful if at that point the committee could look at the experience in that one year and document it, make it a case study and come back and see what the experience has been with the new, non-extension deadline so we have some actual grist.
If you do it the other way, I don’t think you’ll have the evidence. You won’t have the evidence to try to make a decision as to whether it’s a good thing or bad thing or how it needs to be tweaked. But if you try it for a year and then come back and say, “Well, it worked to this extent but we need a little bit of elbow room here,” I think you’d have a better result.
[Translation]
Senator Pratte: In short, I think that the amendment you’re suggesting would work, if the commissioner is asked to comment on the reasonableness. In the legislation, it’s a bit like that. If a 60-day ceiling is imposed and the institution doesn’t subsequently respond, it’s considered a refusal. The requester will then inform the commissioner that the refusal is unacceptable. I firmly believe in Senator Carignan and Senator McCoy’s idea to send a strong signal. After one year, if the number of refusals has increased — In the case of immigration, it’s difficult to think that it takes so long to receive a response. I firmly believe in the need to establish a fairly firm ceiling.
[English]
Senator Ringuette: I do remember reading all the transcripts, and although I wasn’t here, I didn’t really see a great intervention in regard to that.
I would like for you to understand two things. First, the commissioner did say that the system is in dire need of more resources. Money is there, but the experience is that keeping employees in these types of jobs, given the requirements of these jobs, is not an easy process. I’ve asked questions, and once a good person is trained and delivers, departments go and grab them. There’s quite a tug of war in regard to trying to meet the requirements of requesters and having a slate of employees.
One of the things we should not forget is the order-making mechanism that the commissioner will have in the system proposed in Bill C-58. For instance, the example that Senator Carignan brought to us says that he can, in a letter, make a complaint to the commissioner, and the commissioner can look at that and make an order that his answer must be done within 10 days.
So what we’re looking at here is maybe even tying up the hands of the commissioner if we say, “The time limit is 90 days.” When she looks at a complaint, for instance the example of the Canada Border Services Agency where they had to go through 14.8 million pages, then the commissioner might want to provide more than 90 days to the agency to provide the information.
There’s a middle ground here in regard to reasonableness in our request of the system and its ability to deliver.
The Chair: I will add two points. The budget issue has been raised. You will remember that when Minister Brison appeared here, he committed an additional $1 million because the government realized that this bill put additional responsibilities on the government. The objective of the reform is supposed to open the system, to make it more efficient. So we had the commitment of the minister to put more money in, so I think we have to keep that in mind.
Also, we have to keep in mind that decisions of the Supreme Court confirmed that we’re dealing here with quasi-constitutional rights.
I see my colleague Senator Gold on this. You will remember; you can quote the case. I think you quoted the case yourself, Senator Gold.
In the business of quasi-constitutional rights — official languages rights are quasi-constitutional rights according to the Official Languages Act — the government has the responsibility to put forward money. I think we have to take into account that when the government has a constitutional responsibility in relation to delivering services, it has to put forth the money and labour power.
Senator Ringuette: Not necessarily.
[Translation]
Senator Carignan: For information purposes, section 9 already establishes the extension of the time limit. Fortunately, we have very competent staff. Section 9 already establishes the possibility of the extension. Paragraph 9(1)(a) states that the head of a federal institution may extend the time limit set out in section 7, having regard to the circumstances, if “the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution.” Obviously, this decision can be appealed within 30 days. This already exists. Section 9 isn’t affected by the bill as it stands. So, it will remain. So, if it takes 30 days —
Senator Dupuis: It’s an amendment.
Senator Dalphond: Clearly subsection 9(1) is covered by section 9(2). That’s the nature of the amendment. The paragraphs in question are (a) and (b).
This means a complex case where many consultations are required or necessary to follow up on a request. The commissioner may extend the time limit by 30 days as a result of Senator Carignan’s amendment, but not more. Senator McCoy is proposing 90 days instead. I’m in favour of sending a message to the machine so that it responds to these requests within a specific time frame of 30, 60 or 90 days. I’ll defer to the consensus, but I would add the words “except with the authorization of the Information Commissioner.” In a complex case where it takes six months to follow up on the request, the organization will ask the commissioner for more than 30 or 60 days. We’re drawing inspiration here from our agreement at our last meeting to give the organization the chance to refuse to provide access to a vexatious request, with the commissioner’s authorization. I would use the same words with the same mechanism. That’s my suggestion. It would be 30, 60 or 90 days. I’ll defer to the consensus, except that I would add the words “with the authorization of the Information Commissioner.”
[English]
Senator Batters: I wanted to make a few of points on this particular item. Earlier today, I had a very brief conversation with an experienced, respected Hill reporter who told me that because the access to information system is so broken in Canada, he no longer does access-to-information requests. I found that quite shocking. It’s frankly a very unfortunate situation to have in Canada.
So I certainly agree with Senator McCoy’s point that there is this culture of delay, and we need to combat that. Imposing a time limit would serve to sound the alarm, much like the Supreme Court did, as referenced in the Jordan case on court delays. I think it is important to have a time limit that might tend to be ambitious but at the same time is doable to combat this culture of delay.
[Translation]
Senator Dupuis: If Senator McCoy or Senator Carignan don’t agree with the addition of “may not be for more than 30 days,” unless authorized by the commissioner, how should we proceed to introduce a subamendment? We had time to focus on the issue and we’re ready to make a decision.
Senator Carignan: On the subamendement.
The Chair: Yes. You can incorporate the amendment into your amendment, with the consent of the committee members. I think that we’re acting in good faith around the table to make things easier.
Senator Dupuis: I don’t want to get between Senator Carignan and Senator McCoy. Is it 90 days or 30 days? We can settle the issue or accept the principle —
Senator Carignan: If you add 30 and 30, you get 60. If it goes beyond that, it will be with the commissioner’s authorization.
Senator Dupuis: Are you ready to make the proposal, Senator Carignan?
Senator Dalphond: Add the words “except with the authorization of the Information Commissioner.”
Senator Carignan: Senator Dalphond, I won’t call into question the wording.
Senator Dalphond: I think it’s a good idea.
The Chair: The same legislation states “ . . . with the Information Commissioner’s written approval.”
[English]
Senator McCoy: I’m a little confused. Your subamendment, Senator Dalphond, would be to change 30 to 60? It would stay 30 days, and then it would add some words?
Senator Dalphond: “Prior authorization of the commissioner.”
Senator McCoy: Prior authorization.
Senator Dalphond: Yes, except with the authorization. The law will say, “An extension of a time limit permitted under paragraph 1(a) or (b) may not be for more than 30 days, except with the authorization of the commissioner.”
Senator McCoy: In English, at least from my days drafting legislation, we used to always say “prior approval.”
Senator Dalphond: If it says “with,” I guess you need it prior.
[Translation]
The Chair: I was criticized for using the expression “toiletter,” which is a word used for animals at veterinary clinics. I don’t know why I had it in mind, but I think that everyone understands that —
[English]
— when we’re going to do the review of the bill, before I table the report, we’ll make sure we use the proper legal language that would express the intent underlying the text. But I think we understand “with the prior written approval of the Information Commissioner.” I say “written” because it is important that it be on the record. It’s for everybody to see and to read the reasons the delay has been granted by the commissioner.
Senator McCoy: That would help build the case study, so that’s good. I’m in agreement with that. Well done.
Senator Gold: I was going to suggest something along the same lines. I might have tweaked it to 60-plus, but I’m satisfied with this approach. I think there’s a consensus and we can move on.
The Chair: Thank you.
Honourable senators, is it agreed that Bill C-58 be amended, on page 4, by adding the following after line 4:
“6.2 Subsection 9(2) of the act is replaced by adding the following after line 4:
(2) An extension of a time limit under paragraph 1(a) or (b) may not be for more than 30 days except with prior written consent of the Information Commissioner.”.
Is it agreed, honourable senators?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Agreed, on division. Thank you.
We now have the first amendment from Senator Pratte marked AP3. We are at clause 7 on page 4.
[Translation]
Senator Pratte, please introduce and explain the amendment.
Senator Pratte: We’re talking about fees. The current legislation sets out fees ranging from $5 to $25, in addition to other reproduction fees, and so on.
The bill keeps the first part regarding fees ranging from $5 to $25, but also states that other undefined fees may be added by regulation.
My amendment would still keep this provision of $5 to $25, which can be set by regulation — currently, it’s $5 — but would remove everything else. Apart from the initial $5 filing fee, the fees could be indexed from $5 to $25. There would be no other possibility of adding reproduction fees or other types of fees. There would be no other possibility. The only possibility, which already exists, would be that the head of the institution could waive a requester’s fees because the person can’t afford to pay $5, for example. The idea would be to keep the fees at the same level — I believe in the principle of user fees — but to prevent the administration from adding all kinds of fees under all kinds of pretexts. Each institution could set up its own fee regime by regulation, which wouldn’t make much sense. The government is already given the opportunity to potentially increase the fees to $25. This is significant. I think it’s enough.
Senator Gold: I just want to say that I fully support this approach, which is very much in line with the evidence that we’ve heard. Witnesses have told us that, while the fees don’t amount to much money, they can be a real barrier for several categories of people. As a result, I support this approach.
Senator Ringuette: I asked about the information on the requesters, in terms of the individuals in relation to the companies. I was told that 46 per cent of requests from companies mainly concern a large amount of information on competitors. That’s why the department is asking for flexibility regarding the fees. To what extent should the system be burdened by the requests in order to avoid recovering the operating costs generated by entities that just want to obtain information on the competition? This happens. Perhaps we could formally request that a database be established in the coming year, so that we know exactly how many requests are made by individuals in relation to companies and how many documents have been submitted, to give us an idea of the volume. In a year, when the review is carried out, we’ll know whether it’s truly excessive. We should do this before telling the department that we don’t want the fees charged to exceed $25.
Take the example provided earlier of a request concerning border services, with 14.8 million pages of documents. Frankly, if the request comes from the business community and the goal is to obtain information on competitors, I don’t see why taxpayers and the system shouldn’t at least recover the costs.
Senator McIntyre: I understand that the government has eliminated all fees for access to information requests, apart from the $5 filing fee. However, Bill C-58 makes it possible to charge up to $25. Additional fees may be adopted by regulation, which explains Senator Pratte’s amendment. I agree with Senator Pratte’s proposal. I think that it’s a good amendment.
Senator Dupuis: I just wanted to ask the officials here a question regarding subsection 11(1), which states “...subject to this section, a person who makes a request for access to a record under this Part shall pay, at the time the request is made, any application fee of not more than $25...”
The request costs $25. Once the request has been made, the rest, including the number and volume, can be billed in another way. In other words, does the government charge other fees to provide the information? If I’m asking for three truckloads of documents from the Treasury Board, will it cost me $25, or will there be additional fees? Will it cost $25 at the beginning and will other fees be added later?
Will it be based on the request?
[English]
The Chair: Did you get the question, Ms. Naylor, or do you need the question repeated?
Ms. Naylor: The question is essentially this: What is the scheme now in terms of fees in addition to the application fee? Presently, the application fee is the only fee being charged. That’s $5 at present, the same as it has been since 1984. The provision has always said up to $25, but no government has ever increased that amount.
This government sent direction by Treasury Board policy to say that all other fees, even those that could be charged under the law as it now exists, are to be waived. That happened in 2016 and has been the case for several years now. In his letter, the president expressed the intention of the government is to continue that.
The reason the provisions are still being left in Bill C-58 is, as the senator explained, that when a study was undertaken in the House of Commons on the Access to Information Act, the committee suggested that the application fee should be deleted and we should only have processing fees. Their interest was in this difference between commercial requests versus the public or the media, which would not have fees. That’s an example that we see in the United States, where there’s a sliding scale for commercial entities, but for the public, the media, non-profit groups or political parties asking for information, there are no fees. It is because they were aware of some of the alternatives. The intent is to leave the authority in place but to not use it at present. But in one of the future five-year reviews, there would be an interest at this point in looking at other models.
[Translation]
Senator Dupuis: I gather that, before the application of the directive to not apply the directive, a directive in place stated that the departments could charge fees. The decision was made to no longer apply this directive as of 2016. A decision was made to not apply a directive that established service fees. Does this mean that a government could decide to eliminate the directive and ask for fees to be charged again?
[English]
The Chair: In other words, there is the possibility in the bill for the government to decide, on the basis of its conclusions, to impose fees or various fees, depending on the person requesting the information, the person being a corporation or an individual. Is the legal question clear?
Ms. Naylor: It is.
The Chair: What is the answer to that question?
Ms. Naylor: I would say that is possible, but it’s very limited ability at this point. That is because a Federal Court decision in 2015 essentially eliminated the government’s authority, because the provisions are so badly outdated and no longer align with reality of how our documents work now. It eliminated the government’s authority to charge any fees at all with respect to electronic documents. So there is a limited ability to re-establish fees under the law as it is.
We have, in fact, initiated a project at the Treasury Board to update the regulations to eliminate the fee scales that are there.
You will see, though, that Bill C-58 as well eliminates any specificity about fees. It leaves the authority in place to make a scale of fees, but it eliminates any specific references to specific fees that could be charged. I’m trying to consider here, but I believe there would be a very limited ability to do that under the law as it now stands, as determined by the Federal Court.
The Chair: After having been interpreted by the court and being more or less non-constitutional.
Ms. Naylor: Yes.
The Chair: Because we’re talking about constitutional rights. That’s what I said earlier, in a previous discussion.
[Translation]
Senator Carignan: I want to ask another question about fees. Have you estimated the cost of fee management? If the fee charged is $5, how much does it cost to manage everything? I experienced this issue in a previous life. The fees were eliminated because the fee management cost more than the fees charged. Have you ever calculated this?
[English]
Ms. Naylor: Yes. I’m going to go from memory. I know it’s in excess of $50 to administer the fee if it’s paid by cheque. Recently, the government implemented a new access to information privacy request system online. Once the $5 is paid through the online process, it can be paid by credit card and then the cost is 50 cents. And an increasing number of requests are made electronically.
The Chair: In other words, the banks make the money.
[Translation]
Senator Pratte: I proposed this amendment keeping in mind the policy established by this government as well as its election promises. The government pledged to set the fee at five dollars and not to charge anything further. I stuck to that approach. The bill already provides for the possibility of increasing the charge by a factor of five, up to $25. The government had that option. All the other fees are eliminated because the government did away with them in its own policy. That was an election promise. If the government is now saying that it wants to charge businesses more than individual Canadians, there may be merit in doing so, but the government needs to make that clear in the legislation. So far, though, that hasn’t been the government’s policy. I was being consistent with the government’s policy on fees. The government, itself, opted not to charge more than five dollars. This nevertheless leaves some flexibility, a range of $5 to $25, which I think is more than adequate. If the government decides later to adopt a specific policy related to businesses, it will have to make that decision separately. It doesn’t factor into the discussion on this bill as it currently stands.
[English]
Senator McCoy: I support this amendment, for the reasons that have been given, primarily because of the barriers. I’m sympathetic in some ways to the explanation that was given, but it’s indirect regulation. If the government doesn’t believe that one company should seek out confidential and trade information on another, this is not the tool to use to prevent that from happening. So I would not encourage that approach.
I’ll make two other points. When I was talking to Senator Boyer, she has practical experience with this system. She did a lot of work gathering data for her thesis, for her PhD, and then a book. As it happened, it was to do with health outcomes for Indigenous people. As it happened, she was chasing information across a broad number of departments and agencies. So it’s not just $5. For her, with every different person she talked to, right across the government, she had to pay another $5. So it already adds up.
I think we should be supporting anything that makes it possible for Canadians, whether incorporated or unincorporated, to get information about the Government of Canada and not put any barriers in their way.
The Chair: I have no more senators on my list, so I’m in a position to call the vote on this amendment.
Is it agreed, honourable senators, that Bill C-58 be amended in clause 7, on page 4:
“7 Section 11 of the Act is replaced by the following:”; and
“(2) The head of a government institution to which a request for access to a record is made under this Part may waive the requirement to pay a fee or a part of a fee under this section or may refund a fee or a part of a fee paid under this section.”.
Is it your pleasure, honourable senators, to adopt this amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you, honourable senators.
Shall clauses 8 to 12 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Agreed, on division. Thank you.
We will now move to clause 13. If honourable senators might want to take the amendment AP3.1. This is a consequential amendment that follows from the amendment we adopted earlier.
I have Senator Pratte as the sponsor of this amendment.
Senator Pratte: Section 31 is about the complaints that can be made to the Information Commissioner. We have dealt with enforcers — keeping enforcers — so this is a consequential agreement, because the bill was deleting the part where you could complain about enforcers. Since we have re-established enforcers, that means there is no need to delete the part on complaints regarding enforcers. Is that clear?
Senator Batters: You’re on the wrong one.
Senator Pratte: I am. You’re right. Sorry. I was confused. So this is the part about fees.
[Translation]
Senator Carignan: What’s the number of your amendment?
Senator Pratte: It’s AP3.
Senator Carignan: I don’t have it.
Sharing amendments before they are discussed is good practice.
Senator Pratte: What a good idea. I’ll do that from now on. My apologies. My explanation may make more sense this time. This still has to do with the possibility of filing a complaint with the Information Commissioner, but as I said earlier, a host of additional fees were possible under the bill. That was the basis for replacing the system that was already in place, to give consumers the option to complain about unreasonable charges. Now that the fee cannot exceed the $5-to-$25 range and no further fees can be charged, there’s really no need to provide for complaints to the Information Commissioner regarding unreasonable fees. That’s the reason for removing it from the bill. I don’t think it’s any clearer in French than it is in English, to be honest.
[English]
The Chair: Are there any comments in relation to that? It’s a consequential amendment, in fact.
[Translation]
Senator Carignan: I have just one question. With the provision that allows the fee to be waived in certain cases, wouldn’t it be possible to waive the fee for reasons that were inappropriate or discriminatory or that represented an abuse of power? It’s a hypothetical situation, I admit.
Senator Dupuis: That would involve a discriminatory aspect.
Senator Carignan: Actually, it would involve an abuse of power or discriminatory aspect.
Senator Dupuis: Which wouldn’t fall under paragraph 30(1)(b), in any case.
The Chair: No, exactly. It wouldn’t have been covered under paragraph 30(1)(b).
Senator Pratte: It applies to an unreasonable amount.
Senator Dupuis: That assumes we agree that $25 is not unreasonable. That’s the judgment we are making. That’s completely fine.
Senator Carignan: That’s fine with me.
[English]
The Chair: I think everyone is comfortable with it —
Sorry, Senator Batters.
Senator Batters: I want to make a brief comment. That part, as it exists, says:
(b) from persons who have been required to pay an amount under subsection 11(2) that they consider unreasonable;
You might consider all kinds of fees to be unreasonable. To leave it to the person who is potentially having to pay it is a very strange thing. So I agree with the amendment in this particular case to just take that out.
The Chair: Is it agreed, honourable senators:
That Bill C-58 be amended in clause 13, on page 5, by replacing lines 31 to 35 with the following:
“13(1) Paragraph 30(1)(b) of the Act is repealed.”.
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators.
I think there is another amendment to that clause. It’s numbered AP4. It is another consequential amendment, as I understand, Senator Pratte.
Senator Pratte: I’m not sure I want to explain it again, but this is related to enforcers that we decided to keep. Since the Bill C-58 took away enforcers, they decided, as a consequential amendment, to take away the possibility of complaints regarding enforcers. We are re-establishing enforcers; therefore, we are re-establishing the possibility to complain to the commissioner regarding enforcers.
The Chair: I think we all understand that. I’m sorry, I don’t want to say “all” before I see all the hands of honourable senators.
Is it agreed honourable senators:
That Bill C-58 be amended in clause 13, on page 5, by deleting line 36.
Hon. Senators: Agreed.
The Chair: Agreed. Thank you, honourable senators.
We have other amendments to clause 13. They are proposed, as I understand, by Senator Ringuette on behalf of the Treasury Board. Is it so, Senator Ringuette?
Senator Ringuette: Exactly.
The Chair: PR3, PR4, PR16 and PR17 all relate to clause 15. I will make sure they are circulated. I will invite Senator Ringuette to move PR3.
PR2, PR3, PR4, PR5: Do I have all your attention on those amendments, honourable senators?
[Translation]
Senator Ringuette: These amendments are further to the letter you received from the Minister of the Treasury Board of Canada indicating that an agreement had been reached after the Information Commissioner and the Privacy Commissioner discussed a consultation process, which they both felt was necessary to protect one another in connection with the disclosure of information. All of that was covered in the minister’s letter.
The Chair: Ms. Philpott was minister at the time, was she not?
Senator Ringuette: The comments still apply.
The Chair: Very good.
[English]
Are there any questions or comments to Senator Ringuette?
[Translation]
Senator McIntyre: I just want to clarify something quickly. If I understand correctly, Senator Ringuette, it’s nothing more than a technical amendment. Is that right?
Senator Ringuette: It’s more than just technical.
Senator McIntyre: The amendment pertains to the new paragraph you’re proposing or are going to propose, does it not ?
Senator Ringuette: Yes, and it flows from an agreement between the two commissioners and their meeting with the Treasury Board of Canada. Apparently everyone is satisfied.
[English]
The Chair: Any other questions?
Are you satisfied, Senator McIntyre, with the answer?
Senator McIntyre: Yes.
The Chair: I think when the minister came, it was made very clear, as it was with the Information Commissioner when she testified, about the necessity of having an agreement between the two of them. I remember very well they even proposed a memorandum of agreement between the two so they know the procedure to follow when they disagree on something. So I understand that this is in the follow-up of that commitment taken by both of them.
With no other questions, I will put the amendments to a vote. Is it agreed, honourable senators:
That Bill C-58, in clause 13, be amended by replacing line 26 on page 6 with the following:
“Commissioner consulted him or her under subsection 36(1.1) or section”.
Hon. Senators: Agreed.
The Chair: Agreed.
Is it agreed that clause 13, as amended, be carried?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Thank you. Agreed, on division.
We will now move to clause 14 on page 7. This is PR3, which is a consequential amendment, so I won’t repeat it. I understand honourable senators are ready for the vote:
That Bill C-58, in clause 14, be amended by replacing lines 6 to 8 on page 7 with the following:
“Commissioner consults him or her under subsection 36(1.1) or section 36.2.”.
Is it agreed honourable senators?
Hon. Senators: Agreed.
The Chair: Thank you.
Is it agreed that clause 14, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
Then we will move to clause 15, on page 7, a consequential amendment, PR4.
I want to make sure that all senators have the amendments in their hands to make sure they can follow. I understand all senators have the amendment numbered PR4.
Senator Ringuette: Again, this is an amendment because of the understanding between the two commissioners and the Treasury Board. I think it only reinforces the role of both commissioners in regard to their responsibility.
The Chair: Any questions?
[Translation]
Senator Boisvenu: That means, then, that the two commissioners didn’t consult one another in the past. Is that correct?
Senator Ringuette: There was no consultation.
Senator Boisvenu: The process is being established formally in the act. Is that correct?
Senator Ringuette: Yes.
Senator Boisvenu: Does it make the consultation process mandatory or optional?
Senator Ringuette: It’s being established in cases where it is necessary. Not all investigations by the Information Commissioner necessarily involve a section related to privacy. This authorizes the Information Commissioner to consult the Privacy Commissioner, a power she didn’t have previously.
Senator Boisvenu: I see.
The Chair: Further to the commissioners’ comments, they worked in silos, legally speaking. They realized that they needed to agree on some sort of procedure related to each of their roles so that they would not be at odds. A consultation process was recommended to help them come to a common decision.
Senator Boisvenu: I find the word “may” a bit weak. In other words, the Information Commissioner may consult, and may disclose information to, the Privacy Commissioner.
[English]
The Chair: That’s why, as I said, I don’t want to answer for the government; because I’m not the government.
[Translation]
Senator Boisvenu: That is to say, the Information Commissioner may consult the Privacy Commissioner and may disclose personal information to him or her.
[English]
The Chair: Both of them have to agree.
I understand it’s a consequential amendment with the other one. I will put the amendment to a vote. Is it agreed, honourable senators:
That Bill C-58, in clause 15, be amended, by adding after line 10 on page 7 the following:
For Greater Certainty
(1.1) For greater certainty, the Information Commissioner may, during the investigation of any complaint under this Part, consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information.
Hon. Senators: Agreed.
The Chair: Thank you.
Shall clause 15, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Agreed, on division.
We will then move to clause 16, page 8 of the bill. I understand that the amendment is again from the Treasury Board, identified as PR5. All senators have PR5 in front of them. I will invite Senator Ringuette to introduce the amendment.
Senator Ringuette: This is really a technical amendment. This motion would amend subsection 36.1(5) to specify that it is the date of the report that determines when the timeline begins to run in subsection 36.1(4) to provide clarity with respect to when the government institution received the report of the Information Commissioner under subsection 37(2) and 37(3).
The Chair: Are there any questions to Senator Ringuette on this?
Senator Batters: I have more of a general question.
Senator Ringuette, I see there are many different government amendments here, about 18 or so, that will potentially be proposed. Do you happen to know if, at the House of Commons committee, any government amendments were proposed at that stage as well? If so, how many? Do you know that? Do any of the officials here know that?
The Chair: It’s in our report, I think.
Senator Ringuette: I didn’t consult any adding machine in relation to the number of amendments tabled in the other committee, but maybe we have officials who can assist.
Senator Batters: Treasury Board officials might know.
The Chair: Is your question, Senator Batters, about the amendments introduced by the government or the amendments introduced in the overall work of the committee?
Senator Batters: From the government at the House of Commons committee level.
The Chair: We might get that information from the Treasury Board.
Ms. Naylor, do you have that information?
Ms. Naylor: No, I don’t have exactly the number of government amendments brought forward. I do have a description of what amendments were made, but those would include amendments made by non-government members as well.
Senator Batters: Could you perhaps find that out for us and bring that information back, hopefully by the time we’re done clause by clause?
Thank you.
The Chair: I think we can get that information at a point in time. In the course of preparing our draft report, perhaps we could have that and include it there. I think that would be the place to have it.
Senator McCoy: Your proposed amendment is deleting a deeming clause. You’re saying that regardless of whether or not it happened, the order is deemed to have been served on the government official on the fifth day, but you’re removing that. Before, with “deemed to have received” in there, the department, agency or official can’t say they never got it because that’s not a sufficient excuse. Now you’re opening it up to things like, “I didn’t follow your order because I never got it.” Or, “I’m sorry; it’s sitting in the in box and my junior went on sick leave.”
I would hesitate to remove that. I think it’s not a sufficient excuse, but there might be something more that I’m missing. Let me ask that question to Ms. Naylor.
Ms. Naylor: Thank you. This change is being proposed because currently the provision references the date of the order to begin the clock ticking, the time frames for the 30 days for an order to come into effect in this provision.
The reason the change to reports is being recommended is because there was recognition that, in fact, the Information Commissioner retains an authority under Bill C-58, even with the changes that would be made, to make recommendations as well as orders. So if we use as the point of reference the date of an order, as is currently in Bill C-58, there would be uncertainty about what the procedures are if the commissioner makes a recommendation. We would want to have clarity about that for all of the parties involved to ensure that timelines are respected. That is why there is a proposal that it would be the fifth business day after the date of the report.
To my knowledge, I’m not aware of a situation where there isn’t, because there is so much communication between the two offices. We are usually told by the Information Commissioner’s office when a report will be issued, so I’m hard pressed to see a situation where there wouldn’t be awareness. Up to the point of a final report being issued, there is considerable communication between an access-to-information office and the Office of the Information Commissioner; there is an ongoing discussion and negotiation. There is usually a clear awareness that this is coming forward, so an institution would be expecting it.
Senator McCoy: You’re making a distinction now between a report and an order.
Ms. Naylor: Yes.
Senator McCoy: A report is one that has a recommendation in it; is that your point?
Ms. Naylor: The Information Commissioner provides a report to an institution and that report would include her orders. So the reference should always have been to the report triggering the timelines as opposed to the more narrow reference in the bill now to orders triggering the clock to begin counting for that order to take effect.
Senator McCoy: That’s all right, so why don’t you just amend subsection (5) by taking out the word “order” and putting in “report”?
Senator Gold: Are we on PR5?
The Chair: We are on PR5, clause 16 on page 8.
Senator Gold: I’m having trouble following the discussion and the references to “report.” The proposition is to simply delete this subsection. I think we’re talking about two different areas.
Senator McCoy: Maybe that’s true.
The Chair: That’s the purpose of the Senator McCoy’s question, as I understand it.
Senator Gold: I beg your pardon.
Senator McCoy: It’s late.
Senator Dupuis: You seem to have introduced a different type of report including a recommendation compared to a report with an order. Is that what you just said?
Ms. Naylor: Bill C-58 proposes to add an authority for the Information Commissioner to make orders. She would not lose her authority to make recommendations. That is why using the word “order” would be too narrow in that provision.
The Chair: If you go back to page 7, the overall title on this section is “Orders and Reports,” so some of the following clauses deal with the orders. For instance, subclause 36.1(2) states, “The Information Commissioner is not authorized to make an order,” and (3) states that the order “may include.” Subclause (4) says “the order takes effect,” and (5) refers to “the report.” That’s why the clauses thread with orders and reports all at once. That’s how I understand the way that section works.
But the question of Senator McCoy is: Why are we deleting, because we are here dealing with something else than the order?
Senator McCoy: The alternative would be to leave subsection (5) in, and if the objection is the word “order” is too narrow, then change the word “order” to “report.” So you would be deemed to have received the report on the fifth day after the day on which the report was made, because I believe the order is in the report, according to Ms. Naylor.
But after the day on which the order is made; the objection is to this word “order,” apparently. I would amend it but leave the deeming; you’re deemed to have received it.
Ms. Naylor: Looking at the way the motions are numbered, I believe I am looking at a different motion than you have in front of you now, because I don’t have exactly what you’re looking at.
The Chair: Then we will provide you with a copy because our questions are very specific and we want to be sure. We thought those amendments came from Treasury Board, so I presumed that —
Order, honourable senators. We will clarify this.
Senator Ringuette: Thank you, chair. If I look at the PR package of amendments, the motion that I’m talking about is not in this package.
I’m looking at all the PRs in the package, and the motion that we tabled earlier is not in the PR package.
Senator Gold: If I understand correctly, we have been dealing with a motion that none of us have before us, in fact. The confusion has been about the text of an amendment we don’t have. The confusion is because PR5 simply deletes a whole deeming receipt provision, but that is not what they’re talking about.
The Chair: We will clarify that. If what we have as PR5 is not what we should be dealing with, we will get the copy of the amendment that we should be dealing with. Ms. Naylor can’t answer properly to questions in relation to a document that in fact is not the right document.
[Translation]
Senator Dupuis: While the Treasury Board sorts all that out, I have a suggestion. Let’s put it on hold for now, because we are wasting time, and let’s continue with the other Treasury Board amendments. As far as I can tell, they are really unrelated.
[English]
The Chair: Let me bring light to all of this. We are on clause 16 presently. What we could do is stand clause 16 as a whole, because I have other amendments in relation to clause 16. With your concurrence, I stand clause 16. We will move to clause 17 and come back to clause 16 when we have the proper amendments from Treasury Board. I would ask honourable senators to look at clause 17 on page 10, PR7.
Senator Ringuette, it’s an amendment that comes from the Treasury Board. Could you explain the amendment briefly?
Senator Ringuette: As we had with a previous clause, it is an agreement with regard to the Information Commissioner and the recommendation that he or she makes to the complainant, the head of the government institution and any third party entitled under the previous paragraph to make representations to the commissioner. Also, the Privacy Commissioner would be included in this process regarding complaints.
When the commissioner would issue a report that had been — the Privacy Commissioner had been consulted in the process of that particular investigation, then the Privacy Commissioner shall receive the report. It’s as simple as that.
The Chair: Any questions?
Senator Batters: Sorry. I thought you were on PR7, no?
The Chair: Yes, PR7.
Senator Batters: Thank you.
The Chair: You have that also? Okay.
[Translation]
Senator Ringette, Senator Carignan would like an explanation once again. He has the text in front of him and can follow a bit more easily.
Senator Carignan: It isn’t easy when the minister amends his own bill in the Senate.
Senator Ringuette: I think it’s great to see two officers of Parliament, who, after years, have finally reached an agreement. It makes Treasury Board’s job much easier, more comfortable and collaborative. We believe in collaboration. What this amendment does is ensure that the Privacy Commissioner would receive the Information Commissioner’s investigation report if the Privacy Commissioner had been consulted in connection with the investigation.
The Chair: Is that okay, Senator Carignan?
Senator Carignan: I’m thinking.
Senator Ringuette: It’s a consequential amendment in connection with clauses 14 and 15, which were amended earlier as they relate to the two commissioners working together.
Senator McIntyre: Senator Ringuette, as I understand it, there was a joint letter dated March 20, 2018. I gather the amendment was based on the letter. Is that right?
Senator Ringuette: Yes.
The Chair: That’s exactly right. Any further comments or questions? I will therefore put the question on the amendment.
[English]
Is it agreed:
That Bill C-58, in clause 17, be amended by replacing lines 4 to 12 on page 10 with the following:
“recommendations that he or she makes to:
(a) the complainant;
(b) the head of the government institution;
(c) any third party that was entitled under paragraph 35(2)(c) to make and that made representations to the Commissioner in respect of the complaint; and
(d) the Privacy Commissioner, if he or she was entitled under paragraph 35(2)(d) to make representations and he or she made representations to the Commissioner in respect of the complaint.
However, no report is to be”.
And of course the following line.
Is it agreed, honourable senators, that the amendment carry?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
There is another amendment to clause 17.
[Translation]
Senator Carignan: I’m trying to figure out how it will fit into the text. As it is worded, the new section is complete, but paragraphs are being added.
The Chair: The amendment applies to lines 4 to 12. If you take a good look at lines 4 to 12, you see that the rest of the sentence remains intact.
Senator Carignan: Subsection 19(1) isn’t referenced.
The Chair: No, the reference to subsection 19(1) is gone. It’s been removed.
Senator Carignan: What impact does that have?
[English]
We might want to have Ms. Naylor at the table. There is a question in relation to the amendment from Senator Carignan to explain why the reference to subsection 19(1) is excluded from the new text.
Ms. Naylor: This amendment would accomplish two things. First, as senators noticed, it restructures the section, making it more readable by dividing it into subsections (a), (b), (c), (d).
Second, it makes a substantive change. Instead of saying, as it does now, that the Information Commissioner would provide the report to the Privacy Commissioner in circumstances where she is going to order that the head of an institution disclose a record where some or part of it had been exempted under subsection 19(1) — that would be the trigger for her providing a copy of the final report to the Privacy Commissioner under the current wording of Bill C-58. Instead, it says that the report would be provided to the Privacy Commissioner if the Privacy Commissioner were entitled to make representations in the course of the investigation, and the Privacy Commissioner exercised that entitlement, actually made representations.
This change is part of the package of changes that were requested by the Information Commissioner and the Privacy Commissioner to better reflect how they would like to operate back and forth in order to better protect personal information. It has the effect of, in a sense, better defining for the Information Commissioner the circumstances in which the Privacy Commissioner should receive that report.
It’s an important trigger to have established precisely, because when the Privacy Commissioner receives a report, that creates entitlements for the Privacy Commissioner to challenge or contest the recommendation or order of the Information Commissioner in the Federal Court. They were concerned to see it done in a certain way.
Senator McCoy: It makes sense. My brain is too slow at this hour of the night, before eating dinner, to see whether subsections (a), (b) and (c) are affected in any way. It’s a report, when the head of an institution refuses to disclose information because it was personal, right? Subsection 19(1) says, “the head of a government institution shall refuse to disclose any record . . . that contains personal information.”
Ms. Naylor: So (a), (b) and (c) would function independently, and they wouldn’t be affected by the wording of (d). The drafters had recommended that this be restructured to make that perfectly clear. Presently, that provision, which is 37(2), is very long. It would be challenging for, say, a member of the public to see what the rights are.
So there’s no intention to affect the rights and I don’t believe there’s any effect on the rights that were already in place for the complainant, the head of the government institution or the third party with respect to receiving the report. The substantive changes are with respect to the circumstances in which the Information Commissioner would be obligated to provide that report to the Privacy Commissioner and thereby give the Privacy Commissioner the entitlement of contesting the contents of the report, whether that’s an order or a recommendation, in Federal Court.
Senator McCoy: So, “if the report sets out an order requiring the head of the government institution to disclose a record or a part of a record that the head of the institution refused to disclose under section 19(1),” because it was personal information, then these reports have to be circulated. Now we’ve taken that proviso away for the complainant. That’s all. I can’t get my head around that at this time of the day.
Ms. Naylor: I can try to clarify. In both the existing version of Bill C-58 and the restructured version, the complainant has a right to the report in all circumstances. So the condition, “if the report sets out an order requiring the head of the government institution to disclose a record or part of a record that the head of the institution refused to disclose under subsection 19(1),” was only in relation to the circumstances in which the Privacy Commissioner would receive the report.
Senator McCoy: So that’s how you were reading it before. So it only applied to the Privacy Commissioner. Okay. I could have argued the other way, but I’ll accept that.
The Chair: Thank you.
Any other questions for Ms. Naylor?
Senator McCoy: No.
The Chair: Ms. Naylor, Senator Carignan still has a question in relation to why the reference to 19(1) is removed.
Ms. Naylor: Instead of establishing — this is the core change of this amendment. Instead of requiring that the Information Commissioner provide the report to the Privacy Commissioner in the circumstances described here — essentially, the Information Commissioner is going to require the disclosure of information that was withheld under section 19(1). That was the previous proposal. The Privacy Commissioner and the Information Commissioner have asked that it be reframed so that it would be if the Privacy Commissioner was entitled, under a previous provision, to make representations, so essentially was entitled to participate in that investigation by making submissions to it. This committee has already looked at what some of those triggers are. That would be if the Information Commissioner consulted the Privacy Commissioner, whether it was discretion or mandatory. If the Privacy Commissioner was entitled to make representations and made representations to the commissioner in respect of the complaint.
My understanding in discussions with them is that the Privacy Commissioner was seeking this different wording in order to clarify that the Privacy Commissioner would receive the report, whether there was an order or not, that it would include a situation where the Information Commissioner was making a recommendation that affected personal information under subsection 19(1) or an order under subsection 19(1). They were concerned the previous wording was too narrow. So this was the wording that was arrived at in discussions with them.
[Translation]
Senator Dupuis: Paragraph (d) in the amendment to clause 17 refers to paragraph 35(2)(d), which is being added on page 7 of Bill C-58, at the top left of the page. Therefore, the amendment is referring to new paragraph 35(2)(d), which is being added in clause 16 of the bill, at the top of page 7. Is that correct?
[English]
Ms. Naylor: That’s correct.
The Chair: That’s essentially the reference to the power of the Privacy Commissioner to be involved in the decision. That’s essentially what it is, the way I understand it.
Any other comments or questions, honourable senators?
Is the amendment to clause 17, by replacing lines 4 to 12 on page 10 with what I already read, agreed?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Agreed, on division.
I understand there’s another amendment to the same clause, identified as PR8. Do all senators have that text at hand?
Senator Gold: It appears that PR8 is the equivalent of the clause that we can’t yet find for clause 16. Since the time for our meeting is approaching an end, might it make sense to put both of those aside until we get clarification?
The Chair: At the level we are at with clause 17. It seems to be not only reasonable but I should say wise to do that. Given that we want to do the right thing in relation to the amendments sponsored by the government, it would be wise to stand clause 17, as amended, at this stage, and come back to the other amendments when we have clarified the issues in relation to clauses 16 and 17. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
We will move to clause 18. I have no amendments to clause 18.
Senator Carignan: I thought we were supposed to finish.
The Chair: I want to at least make progress.
Clause 18 has no amendment, honourable senators. Can I complete the vote on clause 18?
Is it agreed, honourable senators, that clause 18 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Thank you.
Now I’m ready to receive your point, senator.
[Translation]
Senator Carignan: The meeting was supposed to end at 6:15 p.m. There are other meetings. I had trouble understanding the other amendment, which makes me think that my brain may have shut off at 6:15 p.m.
[English]
The Chair: I’m in the hands of honourable senators.
Senator Ringuette: Since we are meeting again tomorrow morning for another period of two hours, and not at 6:00, I hope we can go further than the two hours specified in the meeting time.
The Chair: I understand your invitation.
I recognize Senator Dupuis, deputy chair of the committee.
[Translation]
Senator Dupuis: I’d like all the amendments we are supposed to discuss tomorrow to be handed out now, so we can go over them tonight.
[English]
The Chair: I think those who are invited to provide the amendments, of course, are kindly invited. Personally, I have not received any amendments.
[Translation]
Senator Dupuis: I’d like to know how many more amendments there are from the other committee members, on top of the ones we’ve already received?
[English]
The Chair: Senator Dupuis asked how many more amendments can be expected.
I’m sorry; I can’t hear you, senator.
[Translation]
Senator Carignan: On the other side, I don’t know how many amendments there are in total. I didn’t count them.
Senator Ringuette: We gave you all of our amendments two weeks ago.
Senator Carignan: I know, but did you include the ones you’re done with and the ones remaining?
[English]
The Chair: Honourable senators, I know it’s late and that all senators have a heavy workload early in the morning, especially on Wednesdays. The chair is always agreeable to receive amendments and, through the clerk, circulate them. I think honourable senators have only one objective, which is when they introduce an amendment, to expect they will be understood, debated and voted. The overall objective is to improve the bill, as much as that is our role as a chamber sober second thought.
I invite the honourable senators to sleep on that tonight so that tomorrow morning the night will have brought some enlightenment to everyone.
(The committee adjourned.)