Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 58 - Evidence - April 3, 2019
Ottawa, Wednesday, April 3, 2019
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 3:18 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: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. We are going 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.
[English]
Before I invite Ms. Maynard to address us this afternoon, I would seek the concurrence of the honourable members of the committee to append in the minutes of our proceedings a note that we have received from the Chief Electoral Officer — all of you have received it — in answer to our own request for information. I see on the email that all of you have received it. It’s in relation to the amendments this committee has adopted to the Elections Act. You have all the information. Since this committee, in whatever incarnation it will take in the future will have to consider statutorily mandates to consider the Elections Act after an election, I suggest that we append to our minutes the message that we received from the Chief Electoral Officer in answer to some questions in relation in Bill C-76. Can I have the concurrence of the honourable members for that?
Hon. Senators: Agreed.
The Chair: Thank you, honourable senators. It is my pleasure this afternoon to welcome Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada. You are accompanied by Marie-Josée Montreuil, Senior Counsel, Office of the Information Commissioner of Canada; and with Allison Knight, Senior Director of Investigations, Office of the Information Commissioner of Canada. Welcome Ms. Knight.
I understand, Ms. Maynard, that you are well aware of the debates that took place here at our last meeting in relation to an amendment proposed by Senator Pratte and the discussion that ensued among the members of the committee.
I also understand that you have opening remarks to make. They are in both languages, so they have been circulated to the members of the committee. The floor is yours, Ms. Maynard.
[Translation]
Caroline Maynard, Information Commissioner of Canada, Office of the Information Commissioner of Canada: I will be very brief.
Honourable senators, thank you for the opportunity to appear before you today during your clause-by-clause consideration of Bill C-58. As Senator Joyal said, I am accompanied by two representatives of my office: Marie-Josée Montreuil, Senior Counsel, who has considerable experience with the subject we will be discussing today, and Allison Knight, Senior Director of Investigations, who also has a lot of experience at my office, but also in Ontario, which has a different model from the one we will be discussing today.
I would like to make a few comments about the amendment you have before you, the intent of which would be, I believe, to change the way the Federal Court of Canada conducts its review of cases investigated by the Information Commissioner.
[English]
In theory, it is fair to say that judicial review of the Information Commissioner’s orders would be the optimal model. Unfortunately, in my view, implementing such a model at this particular time would require more than amendments to a few selective clauses in Bill C-58. I would respectfully submit that implementing a judicial review model requires a comprehensive review of the Access to Information Act, and careful consideration of the changes it would bring to my office’s administration.
[Translation]
For example, an advantage of judicial review of the Information Commissioner’s orders is that institutions would have to present their best evidence and arguments during my investigation, as there would be no opportunity to present new evidence before the court or raise arguments that were not made before me. On the flip side, the decision maker is generally not a party before the court in a judicial review application. If this committee wishes to adopt this amendment, consideration ought to be given as to whether the commissioner should be granted standing before the court. Furthermore, if this standing is granted, the extent that the commissioner would participate in a judicial review should also be considered, perhaps using Ontario, British Columbia and Alberta as examples.
[English]
Also, in a model that implements judicial review of administrative decisions, the courts generally show deference to the expert decision-makers. If such a model was adopted in Bill C-58, the Information Commissioner’s order would likely attract the same degree of deference from the court, given the commissioner’s expertise in access to information. Importantly, however, neither the act nor the bill is currently designed to support an adjudicative model that would lead to a judicial review of my orders. For instance, under a true adjudicative model, there would need to be a separation of the mediation, investigative and adjudicative functions of my office. Finally, the financial and practical impact of adopting a judicial review model should not be discounted. To my knowledge, the mechanics of implementing this model at the federal level has not been studied at this point.
[Translation]
As I said in October, I see Bill C-58 as a step in the right direction and an improvement on the current legislation. If passed, the version of Bill C-58 we have before us would give me the authority to issue orders and allow me to publish these orders and all reports of findings, which would also place public pressure on institutions to follow orders and create a body of jurisprudence, providing future clarity for institutions and requesters in the interpretation of the act. Finally, the bill requires a regular mandatory legislative review, something the act does not currently include.
[English]
Altogether, I find that even though Bill C-58 is not perfect, it constitutes an improvement on the status quo. Based on your discussions, I fully expect that the topic of judicial review will come up again during the one-year review. At that time, I will be in a better position to provide evidence about how the proposed model in Bill C-58 is serving Canadians in obtaining information they are entitled to.
[Translation]
Once again, I would like to thank the members of this committee for the opportunity to present my views on this topic. I will be pleased to answer any questions you might have.
The Chair: Thank you very much, commissioner.
Senator Dupuis: Commissioner, welcome to the committee once again to discuss Bill C-58.
If my understanding of what you are telling us today is correct, the discussion arising from the amendment that was moved at the last meeting of our committee suggests the amendment would undermine the system’s current balance and that, if a judicial review is implemented, it would all require a “comprehensive review of the act.” Is my understanding correct?
Ms. Maynard: If I may, the act is currently drafted for an ombudsman-style process, one in which investigators function as investigators and mediators and we settle most of our cases informally. If we are unable to resolve a complaint informally, the commissioner has authority to make recommendations to the institutions.
I may be getting into on a longer discussion here, but I think it’s important to understand the difference between what we have now and what’s being proposed. Currently, if an institution doesn’t follow the commissioner’s recommendations, or doesn’t wish to do so, it’s up to me or to the complainant to decide whether to put the matter before the Federal Court, and the review of the institution’s decision not to provide the information is then a de novo review. So the process starts over again.
What’s proposed in the bill is that I be given authority to make orders and, where we want additional information to be disclosed, to ask institutions that it be done by order. The orders would then be carried out by the institution, and once again the institution’s decision would be reviewed, but the institution would be responsible for instituting an appeal. The review, once again, would focus on the institution’s initial decision not to disclose the information. I would still have the option of representing the complainant or the position of my office on these cases.
If my understanding is correct, under Senator Pratte’s amendment, the emphasis would now be on the order made by the commissioner’s office and the reports of findings. The Federal Court would then review my orders instead of the institutions’ decisions. What I see, however, is that the amendments don’t address certain provisions, such as sections 44 and 50 of the act, which, once again, concern de novo reviews.
So I’m not sure the review of my orders and investigation findings would automatically become a pure judicial review as a result of these amendments. There is usually a separation of functions in an administrative tribunal that makes final decision-making orders that are reviewed in a legal proceeding by the Federal Court. People are trained to provide mediation and to conduct investigations in that event. In this case, I would prefer to retain a certain separation so that my decisions that are under judicial review are viewed as the decisions of an independent tribunal.
You also have to consider that we’re talking about orders and findings. I hope what is meant is that complainants would also have a chance to file a judicial review application.
Looking at the courts or the offices of the provincial commissioners, we’re talking about an order that presupposes that the complaint is allowed or dismissed. In that scenario, if the complainants or institutions don’t agree, they may submit the order for judicial review. The proposed amendment concerns findings made with respect to an order, but I think what we want is a situation in which my decisions would be subject to judicial review.
What I think is that the act has a number of minor features that preclude it from providing us with a process that lends itself to a pure judicial review. You also have to consider the impact that would have on our office. I don’t know whether, under a new process, we would need only one or several decision makers. I don’t think that would affect the workload, but, at the same time, looking at Ontario, they have 15 adjudicators or umpires and 20 mediators. I currently have 60 investigators; so you have to make sure the duties are well established.
What was important for me and for the people I met was the role of the commissioner’s office in the Federal Court. The Office of the Commissioner and complainants can currently be represented in a pure judicial review model, and the courts usually don’t have jurisdiction or party standing in Federal Court.
I note that, under the models used in Ontario, Alberta and British Columbia, those provinces have legislated to give them an enhanced role because they acknowledge that complainants in these cases don’t have access to information. They are, in a way, left to their own devices in presenting arguments, without knowing on what basis to do so because they don’t have access to the files.
Consequently, consideration should also be given to the expertise of the commissioner’s office so it can continue representing complainants and Canadians in these cases.
Senator Pratte: You say that you’d like to have a judicial review model but that the act would have to be comprehensively reformed to achieve that. Perhaps that’s something that should be addressed when the act is reviewed.
Ms. Maynard: Precisely.
Senator Pratte: I’d like you to explain at greater length what certain provinces have done to become judicial review models, but in such a way that the commissioner can nevertheless intervene in these cases even if his or her own decision is under review.
Ms. Maynard: I’m going to let Ms. Montreuil answer you because we’ve specifically examined Ontario, and Ms. Montreuil can give you some examples.
Marie-Josée Montreuil, Senior Counsel, Office of the Information Commissioner of Canada: Here at the federal level, we have the Federal Courts Act. Ontario has an act and regulations that govern judicial reviews and grant standing to decision makers such as the commissioner. The act gives the commissioner the option to request standing, but the court determines the extent to which the commissioner may intervene because that’s generally assessed on a case-by-case basis. Tests are applied for that purpose, and I won’t give you an exhaustive list of them, but, in principle, the commissioner will be allowed to intervene to a greater degree if there is no one on the other side to defend the decision.
That also happens if the complainant or applicant doesn’t have the necessary ability or knowledge to marshal effective arguments against the person impugning the decision. Case law tests have been established; that’s how it works in Ontario.
At the federal level, and the commissioner in fact noted this, decision makers aren’t parties to a proceeding. There are some exceptions in which leave may be sought from the court, and virtually the same kind of tests apply in this situation, but that doesn’t happen very often. If no provision is made under the act in this regard, matters become more complicated because interested persons must then request standing as parties or interveners. It’s simpler if a process is provided for under the act.
Senator Pratte: Commissioner, we have another amendment before us. I’d like you to confirm for us that you wish to have your orders certified by the Federal Court.
Ms. Maynard: People must understand that it’s the order that’s certified. I think this mechanism assures me that the institution can’t disregard an order, but that doesn’t alter the judicial review of the order. The order is certified only in cases where there’s no appeal, but also where there’s no action either. So they haven’t complied with the order, but they aren’t appealing. In that case, if I can get certification, I can compel them to comply with the order. I’m assured that will never happen, and I hope that’s the case, but this has no impact on what subsequently happens if the order is referred to the Federal Court, which will decide whether to conduct a pure judicial review or a de novo proceeding.
The Chair: I have a question further to Senator Pratte’s remarks. In the letter that you sent to the Treasury Board on March 28, 2018, you suggested that your orders might be certified, didn’t you?
Ms. Maynard: Yes. I would still like to have orders certified. I haven’t changed my mind.
The Chair: That’s what I wanted to know, that you maintain that position before us today.
Ms. Maynard: This is something that’s currently lacking; it’s purpose is to provide some assurance and close the loop. We have a well-established appeal process under the bill, but there’s still this uncertainty: What happens if the institution doesn’t react to the order and doesn’t appeal? I think this would enable my office to take further action on orders.
The Chair: We understand the distinction you make between the judicial review application, or an amendment that would pave the way for judicial review, and your request for certified orders. Those are two separate matters.
Senator Dalphond: Thank you for being with us here today as we prepare to complete our study of the bill. You’ve essentially answered my questions, but I’d like you to clarify one point for the future, not for today. You mentioned Ontario, British Columbia and Alberta, where standing is granted in judicial review proceedings before the superior court of the province concerned.
For the information of my colleagues and myself, could you tell us exactly what kind of standing is granted, the right to intervene in legal matters only or the right to intervene to defend your authority?
Ms. Maynard: I specifically spoke with the Ontario commissioner about this matter last week to see how it works in practice. This is a well-settled practice in Ontario case law. They enjoy very broad standing and intervene in all cases where their orders are in court for review.
They often intervene to explain their interpretation of the act and to ensure that their interpretation of the act, together with their orders, is well understood, and to defend certain positions where the institution opposes a decision in the case of a complainant who isn’t represented, and they do this to ensure that the court has a clear understanding of the case. They seem to enjoy very broad deference and authority to act. Allison has worked with the Ontario commission, and I’m going to ask her to round out my answer.
Allison Knight, Senior Director of Investigations, Office of the Information Commissioner of Canada: Yes, that’s entirely the case.
[English]
Absolutely. The commissioner does have standing. It’s been established in the case law that they can be there to defend their orders. It’s partly because of the specialized area that generally the issues do come down to issues of legal interpretation, interpretation of their home statute and sometimes others as well, as through the access-to-information regime.
Yes, they’re there as full standing parties.
Senator Dalphond: They can go to the merits of the decisions and not only to the legal issues.
Ms. Knight: That’s right. Yes, to the merits as well.
[Translation]
Senator Ringuette: I’d like to ask you three brief questions given our time constraints. We must be realistic and reasonable, and, from what you say, we should perhaps recommend that Treasury Board Canada review how a different court proceeding format might be implemented. Is my understanding correct?
Ms. Maynard: First, if the bill including the new orders is adopted, that first step will help us see the reaction of the institutions and their response to my orders. Will that speed up the process? Will it help settle cases? I also think it’s very important to be able to publish. I’m eager to be able to do that because all the work we do is currently confidential and sample cases for which we’ve conducted reviews can only be provided through my annual reports. This new bill would enable us to publish all future orders and reports of findings. It would also provide an enormous amount of information. Then we’ll be in a position to consider whether a more decision-making-based model should be adopted. Do we need that? The answer may be yes, but we definitely need a thorough assessment of the act.
Senator Ringuette: I’d like to ask a second question about certification. If I’ve correctly understood your intentions in that regard, it’s not necessary to certify all orders, only where that is necessary to get a response from the institution.
Ms. Maynard: This is just a process that would apply where we had trouble getting an answer from the institution.
Senator Ringuette: I’d like to ask you a third brief question. While remaining realistic and reasonable about the system and your operations, I’d like to ask you the following: In cases where the mandatory 30-day period for providing information is exceeded, what impact will that have on your system as it pertains to complaints?
Ms. Maynard: The act currently provides that responses must be given within 30 days, except where a request for extension of the time limit is made. We receive approximately 1,300 complaints a year concerning time limits. I also know that there are about 11,000 to 22,000 extension requests a year.
If I correctly understand your question, we could expect to receive 11,000 to 22,000 complaints concerning requests made to the institutions or failures by an institution if the time period is limited to 60 days.
Senator Ringuette: To 60 days?
Ms. Maynard: Yes. If were talking about 30 days, I’d say that, for last year, 52 per cent of access requests were processed within the 30-day period. That means that 48,000 of the 100,000 requests we received were not processed within 30 days.
Senator Carignan: I’m going to continue along the same lines; this is a serious problem. The institution clearly —
Ms. Maynard: The institutions don’t have enough resources to respond to requests.
Senator Carignan: The institutions don’t have the necessary resources, or is it that they don’t have the will? In the SNC-Lavalin case, for example, the Privy Council Office took 240 days to respond to a request from La Presse. You can’t tell me the Privy Council Office doesn’t have the necessary resources.
Ms. Maynard: In their access to information office, I don’t know.
Senator Carignan: I’d be surprised.
Ms. Maynard: I think there’s an enormous resource problem in the access to information offices. People are exhausted. The workload has increased, but financial or human resources haven’t. People have discussed this with me and said they had the necessary money but couldn’t find the personnel. Working in the access to information field isn’t a calling for everyone.
Within an institution, it’s also hard to get information from people who have information in their offices. People used to have paper files and would take them to the access to information office. Now they have emails, text messages and records. The big problem is information management across the federal government. People make decisions via email. For example, people make requests for access to information on how a particular decision was made. We have 500 pages of emails that include emails containing questions such as, “Are you ready to go for lunch?” and so on. That’s how we work now. As access to information officers, we have to examine all that in order really to find the information that the person wants and that is responsive to his or her request. The same is true for us when we conduct investigations. We receive piles of files, and perhaps only three pages in a 500-page document are actually relevant. It’s crazy.
[English]
The Chair: I must provide to honourable senators the capacity to reach the chamber for the vote. But we will of course stand things as they are now on my list of honourable senators to question.
[Translation]
Pardon me, Ms. Maynard, but I have to suspend the meeting and ask the honourable senators to go to the chamber to vote.
[English]
We will be back after the vote, so we can resume our work on that clause of the bill.
(The committee suspended.)
(The committee resumed.)
[Translation]
The Chair: Honourable members, we will now resume. Senator Carignan was speaking with the Information Commissioner before we suspended. Consequently, I will continue with Senator McIntyre and turn the floor back over to Senator Carignan when he returns.
[English]
I remind senators that we are on a specific amendment in relation to Senator Pratte.
[Translation]
Senator McIntyre: Ms. Montreuil, you cited Ontario as an example in response to one of the questions Senator Pratte raised about the commissioner’s standing before the court. Would you please discuss some examples involving British Columbia and Alberta?
[English]
The Chair: That is to any one of the witnesses.
Ms. Knight, can you try to enlighten Senator McIntyre about the status of the regime in the other provinces?
Ms. Knight: It’s my understanding that they are very similar in the sense that their judicial review procedures acts allow them to have full standing in judicial review before their provincial courts. They have the same kind of broad order-making provisions in their acts, which would allow them to dispose of any of the issues before them on appeal or an adjudication.
Are there any specifics that you’d like me to speak to?
Senator McIntyre: I was wondering if the idea is to adopt the provincial models and incorporate that model into the federal model.
[Translation]
Ms. Maynard: The proposal would be to adopt a legislative amendment that suggests that, to ensure her role before the Federal Court, the commissioner would still have the option of acting on her own behalf, even in cases under judicial review, because an administrative tribunal that renders decisions currently doesn’t enjoy that standing in a pure judicial review proceeding.
Senator McIntyre: Thank you, Ms. Maynard. I had other concerns, Mr. Chair, but my questions have been answered.
[English]
Senator McCoy: I don’t think my questions have been answered. Some good information has been put forward, of course. You say yourself that ideally, you would have judicial review, not trial de novo.
I’m looking, though, at your predecessor’s report and I’d like your comment. This is from 2017 and her report, which is recommendations to improve Bill C-58, page 22.
She pointed out that de novo review provides no incentive for institutions to provide sufficient reasons to establish that information warrants not being disclosed during investigations. This is particularly problematic if institutions wish to delay disclosure. This is a problem under the current act, and Bill C-58 does nothing to improve it.
She was pretty adamant that if you were going to have order-making power, you should be able to have your order reviewed and not go back to allow, as she says, her experience with the de novo experience “has found that it can result in the application of new exemptions,” in other words, new evidence being brought forward, new reasons being brought forward.
Ms. Maynard: It’s definitely an advantage of the judicial review, and that was part of my speech at the beginning. The institutions are then forced to provide the evidence and the arguments in front of the decision maker because they know the case that will be reviewed in Federal Court will be the case that was before the decision maker. So they would have to make sure that they present the arguments and the evidence.
On the flip side, what I was suggesting is that because of the way that the act — or even Bill C-58 — is presently written, it’s not that clear to me that what we would get is a true judicial review of the orders of the commissioner in Federal Court under the current structure and the amendments proposed. Because some of the other sections have not been touched or are not suggesting that it would be through judicial review.
There’s also the issue of the standing of the commission. So I think what Ms. Legault said, and I read her 87 recommendations that she proposed, is that she was suggesting adopting a model that’s very similar to what we have in Ontario, a true adjudication model with decision makers, mediation, separation of functions. But we’re not there now. I find that trying to fix the act and giving the judicial review at this time is trying to fix a plane that has already left; it’s in mid-air. We’re trying to fix the parts, but we’re not fixing the full plane.
I suggest we do a full review of the act, as Ms. Legault was suggesting. One of the frustrations of Ms. Legault, and I can share that frustration and see it from my office, is that we were not consulted during the review of the amendments, so it’s difficult at this point to say we wish we would have been able to say this is what we want, because we were not consulted. Now we’re in front of a bill that is in front of you.
I’m saying it’s better than what it was. We have made some amendments, and I’m happy with the amendments that have been proposed. There is still work to do, definitely. But I think with the ordering power that would be given to me under Bill C-58, it is better than what we have under the current legislation.
Senator McCoy: I think I’ll leave my questioning at that and I’ll let my vote on the proposed amendment say whatever else I want to say.
[Translation]
Senator Boisvenu: Thank you very much, ladies. You said in your presentation that judicial review would be the optimal model. Turning the question around, which of the two models would more effectively facilitate timely and high-quality access to government documents for the requester, for the citizen and for the journalist?
Ms. Maynard: Based on our experience, the time periods would be the same. There’s no major difference in the time periods involved whether you institute a judicial review before the Federal Court or a de novo review.
I think complainants have an advantage in a de novo process, the process we currently have, because I have standing as a party. That’s something the people from the indigenous groups had noted. They were very much afraid that, if the order model were changed, I would lose that ability to act. They were reassured by the knowledge that I would retain that ability to act before the court despite the fact I would be able to make orders under the bill.
We wouldn’t have that ability to act in a pure judicial review process. However, we would be able to get it in a process similar to Ontario’s, but an additional amendment would have to be adopted.
Senator Boisvenu: Thank you.
Senator Carignan: Have you considered an appeal process based on the proper decision rather than a judicial review process? The idea would be to use a regular appeal process, and the Federal Court, instead of a de novo process, and the case would be assessed on the basis of a standard that would be the proper decision standard.
I really like what you said in your introduction, that, if an appeal that isn’t a de novo proceeding were an option, that would force institutions to present their best evidence and not to play hide and seek with you, and they would hopefully not refuse to disclose information to avoid playing that game and thus help to reduce abuses in this area.
Ms. Maynard: I can let Ms. Montreuil answer, but I think what you seem to be saying is that a de novo review is somewhat similar to an appeal review, in which there is a full review of the evidence. However, the arguments must be presented again on appeal.
Senator Carignan: In other words, conduct a real appeal process based on the proper review standard rather than a de novo process, in which the court reconsiders the evidence and new evidence may be introduced. At least, that isn’t being done. It’s done with the evidence as completed. So that enables you to examine the case exhaustively and to compel the institutions to submit all relevant evidence to you and not withhold certain evidence that they would present on appeal, if necessary.
Ms. Montreuil: The proper standard of review ensures that the court will show less deference to the decision maker. That will not encourage the institutions to present their best evidence to the commissioner. If there is a judicial review, either proper or reasonable, the court will review the decision based on what was before the decision maker. So the standard of review will not change.
Senator Carignan: The Federal Court will show less deference because, from the moment you are within your jurisdiction, this isn’t a process based on an unreasonable decision. At least the court assesses whether the commissioner made a mistake, misconstrued the act or erred in her assessment, but based on the evidence as a whole. So you at least have all the evidence. You’re currently told that you made a mistake, that you shouldn’t have made an order or requested the release of information, but they come at you with seven or eight new facts not previously brought to your attention. That makes you look like someone who hasn’t done her job.
Ms. Maynard: In a court review, the emphasis is on the institution. You start over from scratch and you ask the institution to substantiate the reasons why it didn’t disclose the information to the complainant. My order will help the Federal Court reach its a decision. It won’t try to determine whether I was in error. In our investigations, that’s one of the benefits of judicial review, because the court would be required to hear more arguments. Confidentially, my investigators have become quite expert. They know which institutions play hide and seek, as you said earlier. So they ask the right questions. They gather the right information before making a decision. Before deciding whether to make an order or to recommend disclosure of information, I make sure I’ve covered all the bases. This helps us avoid surprises when we appear in Federal Court. In some cases, institutions have tried to add exemptions or exclusions when they appeared in Federal Court. It is already settled case law that this isn’t done. They may only add arguments that support exemptions or exclusions previously provided in the files. That doesn’t happen often, however, but it’s a possibility. I don’t think anyone would want to appeal the commissioner’s decision if they wanted to request an expert opinion from my office in investigation files, show deference or limit judicial reviews. Institutions applying for judicial review will understand that, in a perfect model, it is the reasonable decision that counts. It’s harder to attack a decision than to institute an appeal based on a level of correctness.
Senator Carignan: Earlier you discussed costs, the number of requests, the process and the personnel shortage. However, access to information is a quasi-constitutional right, or the flip side of a constitutional right. In the Jordan case, the Supreme Court held that it was a constitutional right and that every effort should be made to mobilize resources. Do you think we should adopt the same line of thinking? If we set certain obligations, that will put pressure on the government to optimize resources and find the necessary funding. We must get there at some point so that institutions understand the importance of this right.
Ms. Maynard: Yes, and I have a role to play in the publication of decisions and guidelines. I must help institutions get a clear understanding of their obligations and help Canadians understand their rights. The government definitely has a role to play in deploying resources in the right places. This isn’t just a matter of financial resources; it’s also an information management problem. In the next few years, I intend — with additional resources — to audit the various institutions to identify specific problems or conduct more systemic investigations. We must determine where we should allocate resources and how better to help citizens. I clearly can’t take charge of the access to information investigation file, but there are some doors that must be opened because we don’t have all the answers.
The Chair: Earlier you mentioned that access to information for indigenous persons is a critical issue. Many senators around this table share that concern. According to the letter the Minister of Justice sent to the committee on March 13 last, a number of applications for de novo review were made in your 2013, 2014, 2017 and 2018 reports. No indigenous group has been concerned by an application that was denied or in response to which a de novo proceeding was conducted. Do you know of any examples of situations in which the federal agency concerned withheld information sought by indigenous persons that resulted in a de novo review?
Ms. Maynard: No, I don’t. We haven’t yet had any such cases.
The Chair: We have covered all the information we needed to dispose of Senator Pratte’s amendment. I remind you we are still discussing amendment AP6. I am going to ask Senator Pratte to conclude the study of his amendment and whether he still maintains it or whether he suggests that the committee — I am at the committee’s disposal, of course, before we move on to the vote on amendment AP6. I leave it to you to conclude debate on that question.
Senator Pratte: I’m going to maintain the amendment. We’ll vote, and then we’ll see what happens. That’s the simplest way to proceed. Personally, I see from the commissioner’s explanation that this is a premature amendment, given the complexity of the matter. Consequently, at the risk of making myself ridiculous once again, I’m going to vote against my amendment.
The Chair: It’s happened before. Since you’re taking it with good humour, I’m going to follow your example.
Senator Dupuis: We aren’t counting the number of times that’s happened.
The Chair: Are the senators ready to vote? Who is in favour of the amendment moved by Senator Pratte?
[English]
Senator McCoy? Do you want me to repeat the question, Senator Batters?
All those in favour of the amendment as proposed by Senator Pratte?
Senator McCoy on this side of the committee. Agreed.
[Translation]
The Chair: Are you for or against Senator Pratte’s amendment?
[English]
So you vote against?
[Translation]
Senator Boisvenu: That’s correct.
[English]
The Chair: The majority of the committee support the revised position of Senator Pratte. You’re very influential on the committee.
[Translation]
Thank you very much for making yourself available, Ms. Maynard.
Senator Dupuis: How many are for and against?
The Chair: Only one senator is in favour of the amendment; all others are against.
Thank you for making yourself available. Perhaps I can ask you whether one of the persons who have accompanied you can stay with us for our clause-by-clause consideration?
Ms. Maynard: Jacqueline will stay for all the meetings. I have given her permission to speak on the office’s behalf.
The Chair: We’d like to be able to rely on your office’s contribution for any legal issues or issues with legal impact.
Ms. Maynard: Jacqueline is a lawyer and can answer your questions.
The Chair: Very well. Thank you for accepting our invitation.
Ms. Maynard: Thank you very much.
[English]
The Chair: Honourable senators, we will move on to the next amendments on clause 17, by Senator Ringuette.
[Translation]
Senator Ringuette: We’re going back to clause 19.
The Chair: It’s the amendment identified by the letters and numerals PR9.1. You don’t have it, Senator Pratte?
Senator Pratte: I’d like to recall that amendment AP5 is stood.
The Chair: Yes, on certification. Don’t worry about that.
Senator Pratte: You’re carefully following all this.
The Chair: I have a very clear position on that amendment. It hasn’t wound up in “file 13.”
We’re still on clause 19 of the bill, on page 11, but Senator Ringuette’s amendment appears further on in clause 19, on page 12. I invite Senator Ringuette to present her amendment.
Senator Ringuette: This is what I consider a technical amendment to replace lines —
The Chair: Do you want to read it first so it’s officially introduced? Then you can explain it.
Senator Ringuette: That Bill C-58, in Clause 19, be amended by replacing lines 29 and 30 on page 12 with the following: on the fifth business day after the date of the report.
So that also includes the order issue. The order would appear in the report.
Senator Pratte: That was my question. The report is the commission’s report, which includes the order, isn’t it?
Senator Ringuette: Which could include the order, yes.
[English]
Senator Batters: Could you explain briefly why they are making this technical amendment for the record?
Senator Ringuette: We have to understand that whenever the commissioner makes a report, she can make a recommendation, or that report can also include an order. So using the word “report” will be inclusive to whatever she puts forth.
Senator Batters: Rather than limiting it to just an order, it could also be more inclusive. Okay, thank you. I appreciate that.
The Chair: Any other questions in relation to this amendment? Seeing no questions, I am in the position to ask all honourable senators: Do you agree to adopt the amendment as proposed by Senator Ringuette?
Hon. Senators: Agreed.
The Chair: Agreed. Is clause 19, as amended, carried?
Senator Boisvenu: On division.
The Chair: On division, thank you honourable senators.
Then we move to clauses 31 to 32. I have received no amendments to clauses 31 and 32.
I invite you to take clauses 31 and 32, and I would like to give you the page of the bill to be sure that everybody has the right text in front of you. It is on page 17 of the bill, at the bottom of the page, since we stopped at clause 30 at the last meeting.
So we are now at clauses 31 and 32. I have no amendments. We are on page 17 and to the top of page 19. Do honourable senators agree that there are no amendments, unless there are questions?
[Translation]
Senator Boisvenu: There’s an amendment to clause 30.2. Do you have it?
Shaila Anwar, Clerk of the Committee: The amendment hasn’t yet been distributed.
[English]
The Chair: I do not have the text of that amendment. I will come back to 30 but I would like to deal with 31 and 32. Do clauses 31, 32 carry?
Senator Batters: On division.
The Chair: On division.
Senator Boisvenu, yes, I have your intervention.
[Translation]
We haven’t received it, as far as I know.
Senator Boisvenu: It’s been sent.
The Chair: Clause 30.2?
Ms. Anwar: Which one, senator?
Senator Boisvenu: Amendment C-10.
Senator Dalphond: I don’t think we’ve received them yet.
Senator Boisvenu: But it’s been sent.
Senator Dalphond: At least, it hasn’t been distributed to us.
Senator Dupuis: Could we have it now that the clerk has received it, Mr. Chair?
The Chair: Could we also distribute amendment C-11? I think there are two amendments. I’d like to deal with them one after the other without interruption.
Senator Dupuis: Mr. Chair, I have a procedural question. Are there any amendments that have been sent to the clerk’s office and could already be distributed to committee members so they can read them now? Is there a rule preventing amendments that have been received at the clerk’s office from being distributed to committee members at this time?
The Chair: Senator Carignan, Senator Dupuis is asking that the amendments that have been sent to the clerk and that I have not personally seen be distributed to committee members to facilitate debate and study by the committee.
Senator Carignan: I understand that that’s her request. She’s been making it for several meetings now.
Senator Dupuis: The question I asked is as follows: Is there a rule preventing amendments that have been received at the clerk’s office and that are here before us from being distributed to committee members at this time?
The Chair: There is no rule preventing it, if you will allow me to interpret the procedure, but every senator is free to introduce the amendment when the clause is considered by the committee. Obviously, past practice is that amendments are normally distributed when they are ready so that senators can have an opportunity to read them, but we have no specific obligation in our practices requiring that amendments be distributed when they are available.
Senator Dupuis: Thank you. That answers my first question. Here’s my second question, since we just discussed clauses 31 and 32, for which there were no amendments, and we were told there was an amendment to clause 30.2 of Bill C-58. Since there’s no clause 30.2 in Bill C-58, I wonder what we’re talking about.
The Chair: It’s a new clause that’s being added to clause 30. I took the initiative of requesting the committee’s consent to move on to clauses 31 and 32 in order to dispose of them, but I could have stayed on clause 30 in any case.
Senator Carignan: We haven’t considered clause 33?
The Chair: Not at all. So, if you wish, we will invite Senator Carignan to introduce his amendment and then we will proceed with debate.
Senator Carignan: On clause 33?
The Chair: On clause 30. That’s what Senator Boisvenu has requested. Senator Boisvenu, are you moving it?
Senator Boisvenu: Exactly. I move that Bill C-58 be amended, on page 17, by adding the following after line 37:
“30.2 Subsection 67.1(1) of the Act is amended by adding the following after paragraph (b):
(b.1) use any code, moniker or contrived word or phrase in a record in place of the name of any person, corporation, entity, third party or organization;”
The purpose of this proposal is to reinforce the offence of denying the right of access provided for. It refers to the information we’ve received from government employees, who have admitted that employees used codes rather than actual names, as a result of which, when those records were requested by people who had to testify, it was impossible for the defence to determine who the author of the memo was. The purpose of the amendment is to reinforce this notion of denial of the provided right of access to information.
Senator Ringuette: I have some serious concerns. Perhaps Senator Boisvenu could explain this to me. It seems to me everyone around this table wants to ensure that situations involving access to privacy are protected.
Senator Boisvenu: They still are by the act.
Senator Ringuette: Does the addition of this new clause concern privacy, and, in the case of a complaint in the process, will it also concern the process whereby the commissioner consults the Privacy Commissioner? I want to ensure that all the implications of this new clause are clearly understood before we vote.
Senator Boisvenu: The section already exists in the act. What the clause doesn’t include is the use of codes instead of —
Senator Ringuette: It’s not in the act. You even say in your amendment that this is a new clause.
Senator Boisvenu: I’ll cite the section.
67.1 (1) No person shall, with intent to deny a right of access under this Act,
(a) destroy, mutilate or alter a record;
(b) falsify a record or make a false record;
(c) conceal a record; or
(d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).
What we would be adding is that codes may not be used instead or in place of actual names. This method has been used more particularly in cases where search time to identify the information doubled. As a result, proceedings move ahead while the person who requested those records receives them and tries to determine to what the codes correspond. Ultimately, that limits the right to valid information because a code isn’t valid information.
Senator Ringuette: Can you tell me where in the present act the name of the person —Will the consultation process between the Information Commissioner and the Privacy Commissioner referred to in Bill C-58 be respected?
Senator Boisvenu: Because it is already. I refer you back to section 67(1) of the present act. Do you have it in front of you?
The Chair: Of the present act; that’s the amendment to section 67 of the present act.
Senator Boisvenu: Here’s what the act states: “No person shall, with intent to deny a right of access under this Act, (a) destroy, mutilate or alter a record; (b) falsify a record or make a false record; (c) conceal a record, direct, propose, counsel. . . ” and so on.
The idea of using codes to conceal information isn’t in the act. Consider the example of Vice-Admiral Norman, in which a large portion of the records he had received were coded. Consequently, if the record is coded, it’s very difficult to determine who sent it. For example, I send an email, and I type in “D3” instead of Pierre-Hugues Boisvenu. Do you understand what I mean?
Senator Ringuette: I understand what you mean. This entire business of codes depends on the institutional regime. If we’re talking about national security, it’s very specific. Mr. Chair, perhaps we could invite Ms. Naylor to come back and explain to us what this entails.
The Chair: Ms. Naylor is in the room.
[English]
Could you come forward, Ms. Naylor. If you didn’t get the question — if you want to come forward.
Ms. Naylor from the Treasury Board.
[Translation]
Senator McIntyre: The way I understand this from listening to Senator Boisvenu is that codes have been created.
Senator Boisvenu: Deliberately.
Senator McIntyre: So, if you don’t have the key to the code you can’t identify the people concerned by the records. It’s as simple as that.
[English]
The Chair: Ms. Naylor, the question has been put to you by Senator Ringuette.
I remind honourable senators that Ms. Naylor is the Executive Director, Information and Privacy Policy Division at the Treasury Board. Ms. Naylor?
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Treasury Board of Canada Secretariat: I will say I’m at a bit of a disadvantage because I don’t have the wording of the motion in front of me now.
The Chair: We’ll give it to you immediately. You have section 67 of the act with you on your computer?
Ms. Naylor: Yes.
The Chair: So that you know exactly what it does to that section of the act.
I’m sure you know it is under the chapter “Infractions to the Act.”
Ms. Naylor: Yes. So I, of course, have not had much of an opportunity to consider this. I would say that it is — for example, in my own organization it would be standard practice to use the acronym “DM” for deputy minister or “AS” for assistant secretary. That would be very standard in many organizations. There is no intent there to stymie access to information. It is efficiency for the organization.
I wonder if the intent is to capture any action such as that, even if there is no intent behind it, to change what Canadians might have access to when they make a request for information. So as I’m just trying to think it through, this would have quite significant implications in terms of how we communicate in the government. In my view, the duty to assist would already direct institutions under the Access to Information Act as it now stands not to rely on the exact wording but to rely on the intent that is communicated by the requester in terms of what they are seeking.
The Chair: Thank you.
Ms. Naylor: Those are my thoughts. Thank you.
Senator Pratte: I am wondering, Ms. Naylor, whether the example that you have just given, the use of “DM,” for instance, for deputy minister, whether this would really fall into the new offence that’s proposed, because 67.11 does say that it has to be with intent to deny a right of access under this act. I’m more concerned about what Senator Ringuette mentioned about national security, for instance, where codes could be used for national security reasons and not with the intent of preventing someone from getting access to records. Then this would fall under this new offence where the national security or CSE or whatever would use codes to protect their information, but not with that intent — rather, with the intent of protecting national security.
Ms. Naylor: I think the challenge here is that this isn’t an area of the Access to Information Act that’s had a close examination as part of this review because this review is very targeted on certain commitments. It was about the order-making power, determining how the act would apply to ministers’ offices, institutions that support Parliament.
So when we look at the offences, the exemptions, exclusions, those areas actually are areas that the government’s announced intention is to examine them in this phase 2 full review that’s required by Bill C-58, and it says it should begin within one year.
It’s been a two-phase review. So the challenge of being able to speak to this now is the kind of examination and careful consideration of what are the implications in various domains, perhaps policing as well, that we haven’t yet been able to consult the affected organizations on.
[Translation]
Senator Pratte: I’d like to add a comment. I wonder whether what’s covered by the offence proposed by Senator Boisvenu isn’t already included in paragraph (a), which states, “destroy, mutilate or alter a record.”
I don’t know. If it’s a record in which Senator Boisvenu’s name is mentioned, since his name has been replaced by “X2,” the record has been altered with the intention to undermine access to information. So I wonder whether this isn’t already covered by that paragraph.
The Chair: It’s still an open question.
Senator Dalphond: My question is for the senator who moved the amendment. My colleague mentioned national security, but the RCMP often uses code names to conceal the names of informants. Even in cases before the court, we don’t have names; we only have the code file. Are you referring to that type of information?
Senator Boisvenu: No, because the purpose of that code isn’t to contravene the act. It must be clearly understood that no one who intends to contravene the act — a virtually criminal intent from the outset — may use codes to prevent people from tracing information. When the RCMP uses its codes, it does so to protect information not to prevent it from being traced. It’s like what the witness said earlier. In government, people use words: I was a deputy minister for number of years, and it was “ADM” for assistant deputy minister, “DM” for deputy minister and “PM” for Prime Minister, but there was no intent to contravene the act. I’m talking about a genuine intent to contravene the act by using a code to prevent a record from being traced.
Senator Dalphond: I understand, because if we’re talking about protecting a name here, my second question would be this: if we adopt this amendment, will the real name actually appear in the record or will it be concealed, removed or replaced by a code? Or does it mean that the record disclosed to the person who made the access to information request will be redacted to conceal the name in any case?
Senator Boisvenu: That’s a departmental administration issue because the issue of redacted records varies from one department to the next. Some will be as much as 75 per cent redacted and others more or less so. The issue here is the intent of the person who manages or discloses the information.
Senator Dalphond: In fact, the purpose of your amendment is merely to avoid making access to information more difficult.
Senator Boisvenu: Precisely.
Senator Carignan: Ultimately, we want to avoid contravening the act by using codes.
Senator Boisvenu: Secret codes.
Senator Carignan: There’s no problem if it’s done to protect the public interest or national security. No one may use codes if they are used with intent to undermine security or to circumvent the act.
Senator Dalphond: That answers my questions.
Senator Dupuis: Senator Boisvenu, section 67.1 states that no person shall, with intent to deny a right of access do a number of things, including altering, mutilating, concealing or falsifying a record. What you’re proposing here is something of a different nature.
I’m trying to understand, for example, how another name is used. I’m trying to understand what you want to include in a section that concerns destroying or mutilating a record. We’re talking about undoing, destroying or concealing part of a record, whereas what you’re presenting — if I correctly understand what you mean — is that the actual identity, the name of a person or the name of a corporation, a third party or an organization, be maintained in the record in question.
Senator Boisvenu: Ultimately, the basic point is the intent to contravene the act. There is intent. Ultimately, we are modernizing Bill C-58. As a result of recent events, people have knowingly used codes to prevent a person from gaining access to information or to make access very difficult. The question that arises is whether we should incorporate that in the act or leave this defect in the bill thus enabling people to use codes effectively in future and circumvent the act.
Senator Dupuis: In other words, if you’re trying to preserve the person’s identity, why not clearly state that that’s what you want? I’m not sure that should appear in section 67.1.
Senator Boisvenu: Here it reads as follows, and I quote:
(b.1) use any code, moniker or contrived word or phrase in a record in place of the name of any person, corporation, entity, third party or organization.
Senator Carignan: The section must be read as a whole, as it will be amended.
Subsection 67.1(1) provides as follows, and I quote:
No person shall, with intent to deny a right of access under this Act,
And here we’re continuing with paragraph (b.1), which reads as follows, and I quote:
(b.1) use any code, moniker or contrived word or phrase. . .
As has been said, it must not be done with intent to deny a right of access. There’s no problem if it’s not done with intent to deny a right of access.
Senator Dupuis: I’m talking about intent to deny. I’m well aware of the fact that we’re concerned with intent to deny —
Senator Carignan: Precisely. You also understand that this is necessary because you can’t say it’s being done to falsify a record or make a false record; it’s not a false record because it states: “B1 spoke to B2.” That’s not a false record; that’s not a falsification; it’s an actual record. It’s not a concealed record; it states: “B1 spoke to B2.”
Senator Dupuis: My concern is that, when we introduce these kinds of amendments late in a process, the text used — We’re talking about the French word “dossier” here; are we talking about a “dossier” or do you mean the French word “document”?
Senator Boisvenu: I’m talking about a “document.”
Senator Dupuis: Would that mean we need a subamendment to alter your amendment and say “un document” instead of “un dossier”?
Senator Carignan: I don’t know where you got the word “dossier.”
Senator Dupuis: I’m reading a document entitled C-10 that was distributed about 10 minutes ago here today. Tell me if I’m not reading the right document. Are we in fact discussing amendment C-10, which is in front of us?
Senator Boisvenu: No, because section 67.1 doesn’t refer to “dossiers” or “documents.” Section 67.1 states that you may not deny a right of access to information. You may not destroy, and you may not falsify. We aren’t talking about documents here. We’re talking about activities, and one of those activities is the use of a code to circumvent the act so people can’t trace records. This ultimately refers to any record that is admissible under the Access to Information Act.
Senator Dupuis: We agree on that point. In fact, I think we’re saying the same thing. On the other hand, what I’m telling you is that you talked about using a code, moniker, word or phrase in a “dossier,” whereas section 67.1 provides that no person shall deny a right to a “document.”
Senator Boisvenu: I understand. We should substitute “document” for “dossier.”
The Chair: If I may summarize Senator Dupuis’ point, all the paragraphs of subsection 67.1(1) refer —
Senator Boisvenu: Except paragraph (d).
The Chair: — to “document” in French and “record” in English. The English translation of your amendment obviously refers to record, but the French version refers to “dossier,” which isn’t a word used in the other paragraphs.
Senator Boisvenu: I understand.
The Chair: I believe that’s Senator Dupuis’ point.
Senator Dupuis: Yes, because otherwise we’re not within the parameters of section 67.1.
Senator Boisvenu: You’re absolutely right.
Senator Carignan: You’re right.
Senator Dupuis: It happens.
Senator Boisvenu: And we acknowledge it.
The Chair: Are you requesting permission to amend your amendment by deleting the word “dossier” and replacing it with the word “document,” Senator Boisvenu?
Senator Boisvenu: No problem.
Senator Dupuis: Does he want to obtain unanimous consent for the amendment, Mr. Chair? Because I could move unanimous consent.
The Chair: Yes, that normally requires consent.
Senator Carignan: Since it’s your suggestion, you won’t oppose it.
Senator Dupuis: That depends; it’s happened before.
Senator Carignan: All right, never mind.
The Chair: I believe we have consent for the mover to amend the French version of the document to substitute the word “document” for the word “dossier.”
[English]
Senator Gold: I have some difficulties with this amendment. It will require an inquiry after the fact into the intent of the person who may have used the code. As we’ve heard, there are many reasons why one might create a document — I take your point; it’s not a false document with a code, whether it’s to protect the source or to protect an informer.
In addition to the issues of privacy that my colleague identified, this then opens up an inquiry which could, without any sense of appropriate processes, put at risk, whether it’s sources or others involved in law enforcement, national security or other sensitive areas, first of all. So that concerns me.
Second, as we heard from Ms. Naylor, this is not an area that was the object or focus of the study that gave rise to Bill C-58. It is, indeed, part of the law, so I’m not saying that it’s outside the scope, per se, because we’re here to try to study and improve, where we can, Bill C-58, and it needs improvement and we’re all here around this table trying our best to do that.
But I am concerned about how we are proceeding in this way. This has not been studied by government. It has not been the subject of consultation, and we are talking about adding a criminal offence, a potentially indictable offence or summary conviction offence.
In my humble, respectful opinion, this is not an appropriate way for us as senators to be legislating. I can’t help but say, if you’ll permit me this digression, that I agree wholeheartedly with my colleague Senator Dupuis that we would be serving Canadians far better if each of us had earlier access to proposed amendments so that we’d have a chance to study and reflect upon them rather than have to deal with them on the spot, as I gather is our right to do. But I have to say it’s not the best way to do things. And as we are all committed to improving these laws for the benefit of Canadians, I would implore us to try to find ways to be more mindful of doing our job in a planned way.
I’m going to vote against this amendment. I just don’t have the confidence that it properly fits into the bill as it was presented to us, and I’m ill at ease to say yes to an amendment around which we have had literally no proper input from the government, understanding of the processes that might be in place to protect confidentiality, privacy and the like.
[Translation]
Senator Boisvenu: First, we are proceeding as the committee has historically done. We may introduce amendments to the bill before, but also during, our consideration of it. The other thing is that I would consider it irresponsible — and I’m choosing my words carefully here — to leave this deficiency in the act knowing that it’s there and that people will use this method to conceal information or to circumvent the Access to Information Act by knowingly using codes, specifically for reasons of national security. Our job is also to modernize this act.
As to the other element, that of destroying, falsifying or concealing a record, there will be an investigation in all cases, not only those in which codes have been used. If I mutilate a record tomorrow morning, or if I use a code, there will be an investigation because that’s criminal. There won’t be an investigation for certain incidents on the grounds that might undermine national security. As was said earlier, that’s excluded. We’re talking about the use of codes to falsify or to circumvent the act. Your arguments don’t hold.
Senator Gold: With respect, senator, if I may respond, we don’t know at the outset the intent of the person who created a record using a code. An investigation must be conducted and a case opened without involving any process beyond the normal criminal process. As you very well know, in the case of confidential sources, either for the police or for our security agencies, there is a completely different process. Furthermore, apart from questions you’ve asked several times about the Norman case, we haven’t heard any testimony from representatives of governments or other witnesses that has shown us the scope of the problem or how we might consider solving it. All we have is the issue that you have on the table and Ms. Naylor’s response, as a result of which all this will be part of a second phase. That’s why I’m uncomfortable with the amendment you’ve moved.
Senator Boisvenu: Going back to your argument, I administered Quebec’s access to information act for 15 years, not as commissioner, but as the deputy minister and senior official of a department. When we looked for a record that had been destroyed, we investigated, and, when we investigated, people said it had been destroyed accidentally, not knowingly. However, an investigation was nevertheless conducted. If a record that was to be archived was found in an employee’s office, had that employee concealed it knowingly or not? We conducted an investigation. That adds nothing to the commission’s workload; it’s like repairing a crack in the floor so people can’t just slip through it and knowingly circumvent the act.
[English]
Senator Batters: I have a couple of points in response to Senator Gold on this. This is the Legal and Constitutional Affairs Committee. We frequently see bills which deal with people potentially having criminal ramifications, more so than any other committee in the Senate. So I think we’re well-equipped to deal with this sort of thing and we have many people on this particular committee who, in their careers prior to the Senate, had significant experience in this type of field.
So right now, as you just referred to, we have a high-profile criminal case right now where a top ranking military official might go to prison and he’s trying to defend himself, and his lawyer is trying to decipher these documents in which it’s alleged that people from potentially the highest ranks from the Government of Canada used these very types of covert codes to inhibit accused’s ability to have proper disclosure in this matter and defend the cases against him.
I’m fully in support of this motion. I think it’s very well filling a void that definitely exists in this large bill that the Government of Canada purports to be such a major fix to this system. But we’ve just seen time and again that it’s a mess and there are a lot of voids that need to be filled, and I think this is a welcome addition to the amendments in this package.
Senator Ringuette: I have some additional difficulty when I look at Bill C-58, clause 30.1, where we are now including in the original bill section 64, which deals with information not to be disclosed. I believe there’s also a technical difficulty, as far as I can see, that you would have 30.1, which brings forward information not to be disclosed, and then you have 30.2 regarding modifying a completely other paragraph in the original bill, and being contrary to 64. I’m not a legal drafter. I’m not a legal person at all. However, it seems to be contradictory in regard to the sequence of what section 30.1 wants to achieve.
The Chair: You raise a question. I could provide an answer, but first I want to answer Senator Gold’s point, namely, is this outside the scope of the bill.
Senator Gold: I didn’t say that.
The Chair: No, but you raised the question. If not, I won’t offer my opinion then.
Senator Gold: No. I thought I was clear. If I wasn’t, let me be clear. I’m not saying it’s outside the scope. I’m not saying that at all. Nor is it outside our area of expertise. I’m just saying that, given the bill we were presented with, the work that went into it and the testimony that we had, I don’t think it’s appropriate for us to pass this amendment because it raises too many questions around which there’s too much uncertainty. That’s all.
The Chair: You understand the point I was raising was an interpretation of the summary of the bill.
I want to remind honourable senators that when we’re amending legislation, we have to take into account the summary of the legislation because this is the scope of the work that Parliament is called to do. However, you aren’t raising it in that context. I reread the summary of the bill and I was going to offer an interpretation of it. But since you are not requesting it and you have not raised it, I won’t propose it. I will come back to Senator Ringuette.
Senator Ringuette, clause 30.1 refers to section 64, which is in the present act in relation to the power of the Information Commissioner. Of course, section 64 is followed by section 67 within the same chapter of the act.
If I move on the act at section 67, it is in another chapter of the act called “Offences or Infractions.” It is certainly within the context of the power of the commissioner to investigate. Even though the sections 64 and 67 would be part of section 30 of the present act, when the new act is reprinted, the new section 67 will be reprinted in the chapter of “Offences or Infractions.” I don’t think it’s misleading to have an opportunity to consider the amendment put forward by Senator Boisvenu, although it would normally be a different number in the bill. It would be maybe 31 or 38, but it’s exactly the same impact. I don’t think that would confuse the reader of the bill once the new act is reprinted with the proper sequence of the amendment.
Senator McCoy: I think everybody has made some good points. I’m trying to think of a solution. One always goes to solutions. What goes through my mind, in English, at least, concerns adding to this amendment with the intent to frustrate the purposes of this act. Don’t use a contrived word or a code to frustrate the intent of the act, or something like “without the prior approval of the Information Commissioner,” although I don’t know how often this arises and whether that would be too much of an administrative burden. There should be some way that the two examples that were given could be accommodated. By the same token, innovative ways of avoiding disclosure should be discouraged.
The Chair: I see a hand up in the room. The representative of the commissioner’s office is here in the room. You may get an answer to your question, Senator McCoy.
Could you identify yourself, please? Good afternoon.
Jacqueline Strandberg, Counsel, Legal Services, Information Commission of Canada: I’m with the office of the Information Commissioner. I want to clarify for you the role of the Information Commissioner with respect to the criminal law offences in the act.
Right now, the Information Commissioner actually has no authority to conduct criminal law investigations under the act. If you look at sections 67 and 67.8, they are actually a different chapter of the act. We have the Information Commissioner’s powers running from section 30 to section 66, and then the offences start somewhere else. There’s recent case law from the Supreme Court of Canada, Jarvis and Ling — they’re companion cases — which say administrative decision makers or administrative investigative bodies are not authorized to conduct criminal law investigations.
What the act allows us to do instead is if we find evidence of any offence — it could be an offence under the act or it could be any other criminal offence in provincial or federal legislation — we refer the matter to the Attorney General. The Attorney General then makes a decision with respect to whether or not that offence, or what we believe could possibly be an offence, should be investigated. We don’t conduct the investigations.
To give you some historical evidence, in my knowledge, in the entire time that sections 67 and 67.1 have been in the act, the office has referred about half a dozen instances of where we believe there is evidence with respect to the commission of an offence, specifically with 67 or 67.1 under the act, and there have been no charges laid under the act, to give you context about what our role is with respect to those criminal law provisions.
[Translation]
Senator Boisvenu: I’d like to draw your attention to a problem that was raised during an investigation into the Norman case. It clearly proved that the use of codes had prevented the accused from mounting a defence simply because the records were hard to trace. Consequently, if someone else winds up in that situation, will his or her rights be violated? I believe so. I think the decision is up to you.
[English]
The Chair: I understand that you are calling for the vote.
All those in favour of the amendment as introduced and explained by Senator Boisvenu, raise your hand. All those opposed? All those who abstain? No abstentions. The amendment is carried, 5 to 4, and 1 abstention.
I have another amendment to the —
Senator Batters: Excuse me, chair. I believe it was 6 to 4, because Senator Dalphond had his hand up also.
The Chair: I didn’t see him but I could recall the vote to be quite clear. If I may get your attention, Senator Dalphond. There’s been a question raised in relation to your vote. I will call the vote again to be sure about the result.
All those in favour of the amendments as introduced by Senator Boisvenu, please raise your hand. That’s five.
All those opposed? And abstentions? The amendment is carried.
It is clear for everyone.
I have another amendment in relation to clause 30.2. Senator Boisvenu? Can we circulate first the amendment?
[Translation]
Senator Boisvenu: I thought amendments C-11 and C-12 had already been distributed.
The Chair: No, since we are considering them separately. I believe that’s what you suggested.
[English]
Do all honourable senators have a copy of the amendment? Thank you.
Senator Boisvenu?
[Translation]
Senator Boisvenu: It is moved that Bill C-58 be amended, on page 17, by adding the following after line 37:
“30.3 Paragraphs 67.1(2)(a) and (b) of the Act are replaced by the following:
(a) an indictable offence and liable to imprisonment for a term not exceeding four years or to a fine not exceeding $20,000, or to both; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding two years less a day or to a fine not exceeding $10,000, or to both.”.
Simply put, my argument concerns the fact that the penalties do not seem to have been updated. The Access to Information Act represents many things for the government and society, and it must not be violated. Consequently, the sentences and penalties associated with it must be increased so the act contains even more deterrent elements.
[English]
The Chair: I will re-express your argument in my own terms. What you do, you don’t add penalty, per se, the penalties already exist in the act. You are increasing the penalties from two years to four years. Two years exists presently in the act, and from $10,000, which already exists in the act, to $20,000. Sub (a) and sub (b), you increase from six months to two years less one day, and from $5,000 to $10,000 the penalty that is — okay, let’s be very clear. I don’t think we are going to open that debate.
Senator Batters: I have a question for Senator Boisvenu. Dealing with these financial amounts that are listed in the act, as it currently exists in section 67.1, I’m assuming that those have probably been there since this act came into effect in the 1980s; is that correct? If so, it certainly seems reasonable that after 30 years that those amounts be increased.
[Translation]
Senator Boisvenu: The act has not been amended since 1993, I believe. So these amounts date back nearly 25 years.
[English]
Senator McCoy: 1983.
Senator Batters: 1983.
[Translation]
Senator Boisvenu: 1983. So that’s about $500 a year.
Senator Ringuette: Once again, this section is part of the review of Bill C-58. I wonder to what extent this proposed amendment wouldn’t be inadmissible because we’re conducting the clause-by-clause consideration of Bill C-58, which is before us, not the present act. In taking a second look at Bill C-58, the committee didn’t request any consultation or testimony on these elements, which were not part of Bill C-58. I think these amendments are inadmissible.
Senator Dalphond: I’m going to start with a question, and then I’ll have two comments. As far as you know, how many prosecutions have been instituted since 1993? I’m putting that to the mover. I assume there’s a problem that we want to consider in the proposal.
Senator Boisvenu: In one section of the act, someone mentioned six or seven cases for section 67.1. The lady mentioned eight cases, but as a whole —
Senator Carignan: Can we have them as witnesses?
Senator Boisvenu: Perhaps they can come and testify?
[English]
Ms. Naylor: Again, we haven’t studied this matter in any detail, so I’ll be working from my best knowledge at this point. The last time that I can remember examining this in my own work at the Treasury Board of Canada Secretariat, we found that there had never been a prosecution under these offences. There had been a number of investigations, but no prosecutions under these offences.
I would add as well that the last amendments to this section were in 1999.
The Chair: Thank you.
[Translation]
Senator Carignan: What was the amendment in 1999? We can see in the legislative history, at Chapter 16, section 1, that the act was amended, but we don’t know the nature of the amendment made to that section.
[English]
Ms. Strandberg: I’m hazarding a guess, but I do know that 67.1 was added in the late 1990s. It was after the Somalia inquiry that the new offence was added to the act. I believe that’s what that change was in 1999, but I’m not 100 per cent certain of that. From my understanding of my review in the act — and I have worked on legislative review for a number of years at the office now — I do not believe the penalties have been changed since the act came into force in 1983.
[Translation]
Senator Dalphond: That answers my questions for the mover. I understand why we brought in the witness, who’s able to answer the question I asked. I understand there’s no evidence of any kind of systemic problem in the application of this provision. No witness has told us there’s a systemic problem on this issue. I therefore move that this amendment be defeated.
The Chair: Senators, if you wish, I will follow the order.
Senator Carignan: I have a question for the witness.
Senator Dupuis: I do too.
The Chair: I’m not inviting them to leave the table since we are considering this amendment.
Senator Dupuis: I just want to get a clear understanding of the information you’ve given us, madame. As far as you know, has the Information Commissioner referred any files to the Attorney General in recent years that might suggest there’s a problem with section 67.1?
[English]
Ms. Strandberg: We would never ask for a prosecution but we have sent files to the Attorney General in the history of the Office of the Information Commissioner. As I said, I believe it’s around half a dozen for 67 and 67.1. I’m not sure of the precise number between the two, but about half a dozen times we have referred files to the Attorney General. Then the Attorney General makes the decision as to whether the file needs to be sent to the appropriate authority to investigate, and they in turn make decisions with respect to prosecution.
[Translation]
Senator Carignan: You say that’s pursuant to section 67.1 and in response to a problem I imagine was raised in the Somalia inquiry report in 1998. Can you elaborate on that problem and on the reason why section 67.1 was introduced? A response to that question might help justify imposing harsher penalties.
[English]
Ms. Strandberg: I was very young at the time of the Somalia inquiry, but in my historical research there were records that were destroyed. Access requests were made and records were destroyed instead of being given to a requester, and they were destroyed exactly as the provision says in 67.1, with the intent to deny the right of access. But there was nothing in the act that criminally prevented that from occurring, so that provision was added to the act with the hopes that it would never occur again.
[Translation]
Senator Ringuette: Neither the testimony before this committee nor Senator Boisvenu has justified this amendment, based on studies or other acts of Parliament. I agree with Senator Dalphond: Let’s proceed to the vote. I’m definitely not in agreement with the amendment. Once again, I remind you, I consider it inappropriate.
Senator Boisvenu: The aim was really to modernize the act. That follows the trend of Bill C-75, in which most hybrid offences are punishable by prison terms of two years less a day. The philosophy was the same and the intention was really to modernize the act, to say that the measures we have no longer deter people who wish to contravene the act. We’re simply talking about that approach.
[English]
The Chair: All those in favour of the amendments introduced by Senator Boisvenu, please raise your hands. All those opposed? All those who abstain? The amendment is defeated.
We will come back to clause 30. I will ask for a vote on clause 30 as amended. All those in favour of clause 30 as amended? Agreed?
Senator Ringuette: On division.
The Chair: On division, thank you.
[Translation]
We will continue with clause 33 of the bill, on page 18. I am informed that we have an amendment. Can it be distributed, please?
[English]
The Chair: It’s amendment C-11.1.
[Translation]
If you would distribute it quickly, please. This is an amendment introduced by Senator Carignan. Have all the senators received the text of the amendment?
Senator Carignan, please introduce it.
Senator Carignan: This amendment adds to the responsibilities of the designated minister. There is currently a duty to record, but it’s an administrative duty and the responsibility of the deputy ministers. It’s a practice that’s simply carried out by means of directives from senior officials, and it appears to be inadequate. The idea is to establish this duty to record at a higher level. The designated minister is therefore asked — and I’ll read paragraph (c.1) — to cause to be prepared directives and —
The Chair: Are you reading the text of the amendment as it stands? For procedural purposes, it is preferable that the amendment first be introduced to us.
Senator Carignan: I was getting ahead of myself.
The Chair: You were too eager to convince your colleagues of the merits of your amendment.
Senator Carignan: I apologize for being overzealous.
I move:
That Bill C-58 be amended in clause 33, on page 18, by replacing line 17 with the following:
“(c.1) cause to be prepared and distributed to government institutions directives and guidelines regarding the creation and retention of government records that
(i) document decisions made by government institutions,
(ii) ensure the continuity of governmental operations,
(iii) allow for the reconstruction of the evolution of policies and programs, and
(iv) facilitate independent evaluation, audit and review; and”.
This amendment addresses the duty to record. We asked ourselves whether we were adding this duty to the act or assigning the designated minister responsibility for issuing directives and developing policies to ensure the public service records the decisions that are made.
The Treasury Board has an information management policy under which the Treasury Board Secretariat’s role is to ensure this duty to record is discharged. However, it appears this provision is insufficient. The aim here is to make it a more specific departmental responsibility.
In paragraph (c) of clause 33, in the first subsection, we are adding the concept of directives regarding the creation and retention of records. Then, in subparagraphs (i), (ii), (iii) and (iv), we clarify various decisions and procedures that must be recorded.
Senator Ringuette: I find it hard to see how this can be a measure of major importance. First, the letter we received from the Treasury Board clarifies the matter of departmental policies regarding, for example, the retention and availability of records. The 12-page information management policy is on the Treasury Board’s website. It’s entitled “Policy Framework for Information and Technology.” This promise appears in the Treasury Board minister’s letter and concerns the use of technology.
The Chair: Can you give us the date of the letter, please, Senator Ringuette?
Senator Ringuette: Yes, of course.
The Chair: I believe you have it in front of you. I thought you had it in your hand.
Senator Ringuette: I have all kinds of things here.
Senator Carignan: You’ve recorded it and it’s clear?
Senator Ringuette: Yes. The Treasury Board minister’s letter is dated — All the information is here. Now we want to add the department’s policies to the act. This policy exists because there has to be some flexibility. The measure is all the more important given the new records technologies, which change at lightning speed. The department must retain some flexibility in the event a new type of record is produced. The department’s management policy should therefore be amended quite quickly. That’s why policies are developed within the departments. I believe the purpose of this amendment is to replace a policy with a bill that will reduce the department’s flexibility in issuing directives for the creation and retention of records, as well as the introduction of new records search technologies. I don’t agree with the proposal before you.
Furthermore, if you wish — Unfortunately, I have only one copy of the policy, but I took a look at the policies the Treasury Board publishes on its website.
Senator Gold: Senator Carignan, can you tell us what testimony you’ve heard on that point in this committee, because I may be wrong, but —
Senator Carignan: It was addressed in the testimony of several witnesses. I specifically asked the question. Some senior officials said that sometimes information isn’t recorded. Even the Leader of the Government in the Senate confirmed that this is the practice. I would’ve liked to hear it from the Minister of Justice in person. When I put the question to the Leader of the Government in the Senate, he claimed cabinet confidence to avoid answering me.
Senator Gold: Perhaps I wasn’t clear. I wanted to know whether any witnesses have recommended putting this in the bill.
Senator Carignan: Some people have proof that it exists.
Senator Ringuette: Where’s that proof?
Senator Dupuis: Senator Carignan, can you look at subsection 70(1) of the present act? I’m referring to paragraph 70(1)(a). The designated minister is responsible.
(a) cause to be kept under review the manner in which records under the control of government institutions are maintained and managed to ensure compliance with the provisions of this Act and the regulations relating to access to records;. . .
Doesn’t your amendment duplicate what appears in paragraph (a)? In other words, when you refer to a designated minister responsible for keeping under review the manner in which records are maintained, that means you’re creating, processing and retaining records in the federal government. I’m trying to understand what your amendment will do by adding paragraph (c.1).
Senator Carignan: The present paragraph (c) provides: “cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this Act and the regulations.” We’re adding an element to the process of preparing directives specifically for the creation and retention of records. Consequently, we want there to be not only general directives for keeping under review the manner in which records are maintained, but also directives, a specific responsibility of the designated minister to ensure the creation and retention of documents.
Senator Dupuis: I’m just trying to understand.
Senator Carignan: At the moment, I understand that this isn’t a responsibility of the designated minister. The designated minister doesn’t issue specific directives on the retention of records but rather on the duty to record.
Senator Dupuis: Could this matter of interpretation, in the context of the administration of the departments, be linked to paragraph 70(1)(a), which concerns keeping under review the manner in which records are maintained? In other words, is it a question of interpretation over whether ministers carry out their mandates under section 70 that’s troubling you??
Senator Carignan: If you think it’s merely a matter of clarification to avoid confusion over the role of the designated ministers, we can view it that way. I imagine that will make it easier to get your support.
Senator Dupuis: We have paragraphs (a), (b), (c) and (c.1). You’ve just introduced a paragraph (c.1) that duplicates both paragraph (c) of the present act and paragraph (c) of Bill C-58. However, it doesn’t seem to fit in anywhere. We already have a paragraph (c.1), which concerns the annual collection of statistics for the purpose of assessing —
Senator Carignan: I don’t understand the question.
Senator Dupuis: If you look at the act — Do you have the present act? Section 70 currently has a paragraph (c.1). Do we agree on that? What are we doing with a new paragraph (c.1), when we want to add that to line 17on page 18 of Bill C-58?
The Chair: It’s obvious that this bill eliminates this paragraph (c.1), which becomes paragraph (d). Do you understand? There’s a paragraph (c.1) in the present act.
Senator Carignan: Which becomes paragraph (d), hence the need to add a paragraph (c.1) as part of my objective.
Senator Dupuis: What I want to know is whether paragraph (c.1) —
Senator Carignan: Which one, the one that becomes a (d) or my amendment?
Senator Dupuis: Amendment C-11.1 — What does it add to what’s already in paragraph 70(1)(a) apart from aims that you want to introduce into this clause, whereas we haven’t necessarily — In other words, we could insert aims into each of the clauses of Bill C-58. We want it to be “in order to.” We want to clarify the aims of each clause. Why should we give priority to this clause in Bill C-58? There are 60 of them in total in the bill. Why add aims to this clause, to paragraph 70(1)(c)?
Senator Carignan: The intent is clear. We’re requiring the minister to give his officials directives to record the decisions that are made. That’s the objective of paragraph (c.1). Most of the sections in the act are there for the purpose of managing information and documentation and improving access to that information. There is no specific duty to create a record when a decision is made to support the rationale of that decision. The objective of paragraph (c.1) is for the designated minister to prepare and issue directives regarding the creation and retention of records as part of a decision-making process.
Senator Dupuis: What I don’t understand is that, in your proposal, you would like to limit the preparation of instructions and directives solely to the creation and retention of records. Whereas...
Senator Carignan: Pardon me. I’m focusing specifically on this point. However, the designated minister has other responsibilities, which are described, in particular, in paragraph (b), to prescribe forms; in paragraph (c), to “cause to be prepared and distributed....directives....concerning the operation of the Act and the regulations,” and in paragraph (d), on data collection. Consequently, the designated minister must discharge various duties. We would add one, which would require the minister to issue directives to record decisions.
Senator Dupuis: I’m trying to understand the logic because now we’re adding things. However, you know as well as I do that a basic principle of legislative drafting is that Parliament does not legislate in vain.
As a result, we have paragraph 70(1)(c), which provides as follows, and I quote:
(c) cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this part and the regulations;
Why would we separate or introduce a new authority or a new ministerial responsibility, which creates something of a different nature and raises a needless question by saying that there exists a power or a general responsibility for the preparation of directives and guidelines concerning the operation of the act, and then add a specific authority for those purposes?
Senator Carignan: I don’t know how to explain it, so...
Senator Dalphond: I was going to move that we vote, Mr. Chair.
The Chair: Senator Ringuette raised her hand before you moved that we vote.
Senator Ringuette: Could Ms. Naylor come and briefly tell us about this?
Senator Dalphond: Is that necessary? I think we’re ready to vote.
[English]
The Chair: Very quickly, Ms. Naylor, did you understand the question?
Ms. Naylor: Not exactly.
Senator McCoy: I’m quite partial to this amendment, although I’ve just seen it for the first time now. But I clearly remember evidence from several witnesses saying that they would very much like to see the duty to record decisions and actions of the department included, and that is one of the key components of the modern access to information regime.
While this may not be entirely that, it gets the point across. That’s really what it is; it is creating records and retaining records in order to allow for the reconstruction of the evolution of policies and programs and facilitating independent evaluation, audit and review.
That, to me is, a desirable thing, and that’s the direction in which we would be going if we had this entire act in front of us under the parliamentary review. So I’m partial to it because at least it’s a step in the right direction, and that is very much a modern regime.
Let me add that to the mix, as succinctly as I can put it. I don’t want to drag out the debate any longer.
The Chair: Ms. Naylor, you’ve had time to reflect on the question.
Ms. Naylor: I wish for the committee’s benefit to point out that we did some quick research here. Our practice within government is to turn to Library and Archives Canada for direction on retention. They are currently the sole organization that can direct how long you must retain records. Again, I’m looking quickly, but there’s an authority in their act that no government or ministerial record can be destroyed without written consent of the library and archivist or a person to whom the library and archivist has, in writing, delegated to give such consent.
I believe it’s through that power that the authority to determine retention periods is determined. That just speaks to one aspect of this proposal, but I wished for you to know that there may be some overlap with legislative authorities that exist. We simply haven’t done the sort of research to be able to speak to the details of that.
[Translation]
Senator Carignan: The idea is to make it a power or a responsibility of the designated minister to issue those directives.
[English]
The Chair: All those in favour of the amendment as introduced by Senator Carignan, please raise your hands. All those opposed. It’s a tie, so the amendment is defeated, 5 to 5.
We move to clause 33.
Is clause 33 adopted?
Senator Batters: On division.
The Chair: On division. Thank you.
We would move, then, to clause 34.
We have an amendment. It’s identified by the code AP9.
[Translation]
This is an amendment to clause 34, on page 19. If you want to read the bill, it’s on page 19. I would ask the author of the amendment, Senator Pratte, to introduce it to us.
Senator Pratte: This is the enumeration of the regulatory powers of the Governor-in-Council. If you go to paragraph (e), you will see that the Governor-in-Council had authority to make regulations for the purposes of both subsection 11(1) and subsection 11(2). However, under an amendment that we have already adopted, subsection 11(2) has been repealed.
The Chair: This is a correlative amendment. Are there any other comments?
[English]
All those in favour of the amendment please raise your hand. Agreed? All those opposed? No abstentions? Thank you. Amendment carried.
Is clause 34, as amended, carried?
Senator Batters: On division.
The Chair: On division. Thank you.
Could we move to clause 35? There are no amendments to clause 35.
Is clause 35 carried?
Senator Batters: On division.
The Chair: On division, clause 35 carried.
We move, then, to clause 36. I understand it’s an amendment of Senator Dalphond on page 25, PJD-2.
I will make sure that all of the senators have a copy of the amendment because it might not be available to you.
[Translation]
Senator Gold: While waiting for it to be distributed, I would like to ask whether we will be finished by 6:15 p.m.
[English]
The Chair: I was going to suggest continuing until 6:30 because we were delayed by the vote. We had the authorization of the chamber to sit from 3:15 to 4:15, and because of the vote at 4:00, I had to adjourn the committee. I was to propose that to honourable senators if they would be available. But if you’re not, I’m in your hands.
[Translation]
Senator Boisvenu: I have a commitment.
Senator Gold: I have a commitment too.
[English]
The Chair: We’ll adjourn at 6:15.
[Translation]
Senator Dalphond: I doubt we can finish by 6:15 p.m. because this is a very sensitive matter.
[English]
The amendment is ready to add subsection 2, and, of course, that would include adding (1) at the beginning. I’ll read it.
The Chair: You have to read the whole text, senator, if I can ask you to do that.
Senator Dalphond: The amendment reads as follows:
That Bill C-58 be amended in clause 36, on page 25 —
[Translation]
(a) by replacing line 9 with the following:
“71.12 (1) Sections 71.02 to 71.11 do not apply to any of the”; and
Actually, we’re just adding the parenthetical (1).
I continue as follows, and I quote:
(b) by adding the following after line 14:
“(2) No determination by the Speaker of the Senate or their delegate under subsection (1) may be made before the Speaker or their delegate receives the advice of the appropriate authority that the Senate, by its rules or orders, designates.”.
[English]
The Chair: Can you explain?
Senator Dalphond: There was much debate about the role of the Speaker and the Speaker’s ability to make decisions that could be binding upon the Senate. This is to clarify the situation in which the Speaker or his or her delegate must act after receiving the advice of the appropriate committee of the Senate. That committee will depend, of course. If it’s happening this summer or at any other time when the Senate is no longer sitting, that would be CIBA, because it’s the only committee that is still standing. Otherwise, it could be a different committee when the Senate is not prorogued.
Senator McCoy: So this is, then, to stop the slippery slope of making statements in statutes that seem to imply that the Speaker of the Senate actually gets to decide on whether there’s a breach of privilege. Is that the intent behind this?
Senator Dalphond: Yes, the intent is to cover the situation where Parliament has been prorogued. Only the Senate has the authority to speak on behalf of the Senate, but even in such a case, the Speaker would have to consult with CIBA.
Senator McCoy: So you would take, by replacing line 9, sections 71.02 to 71.11 does not apply to any of the information or any part of the information.
What has changed there? 71.02 to 71.11 do not apply to any of the — all you’ve done is renumbered the subsection.
Senator Dalphond: That’s it. That’s the sole change. Then it introduces subparagraph (2), which is new.
Senator McCoy: Then you say:
No determination by the Speaker of the Senate or their delegate . . . may be made before the Speaker or their delegate receives the advice of . . .
Is that going to work?
Senator Dalphond: I think it was addressing your concern that the Speaker was vested with too much authority under the proposed bill.
Senator McCoy: I agree. I think it’s addressing it. I think we need to leave this discussion today. I see there’s quite an elegant amendment coming forward from the government, or at least the sponsor of the bill.
The Chair: On this very issue?
Senator McCoy: 12.1, in 71.14. She’s changing the words “would be a breach” to “may be a breach.” I would commend that simple and elegant proposition to all of us to consider overnight, because it could actually be the path forward. It’s a “may.” It’s not a determination. He’s saying it’s basically saying, in English, prima facie: it may be.
So there is a certain principle my now-deceased husband used to like very much. He called it the KISS principle, in English: keep it simple, stupid. In this case, I might be hearing Myles addressing me in a former life: “Keep it simple, senator, and just change that “would” to“ may.””
I wonder if we could sleep on this overnight. It might be a way forward.
The Chair: I still have 30 seconds for Senator Batters, who has a question.
Senator Batters: No, I think it would be a good idea to sleep on it. Which particular amendment number is it, Senator Ringuette?
Senator Ringuette: PR11.1.
Senator McCoy: 12.1.
The Chair: 12.1. PR-12.1.
Senator Ringuette: And 12.1.
Senator Batters: I will look at that overnight.
The Chair: On the same issue, the concordance of the “may.”
Honourable senators, I think it’s a good idea to sleep on it, because there are senators who will make speeches, so they might want to go to sleep immediately.
[Translation]
Senator McIntyre: Will we continue with Senator Dalphond’s amendment tomorrow morning?
[English]
The Chair: We will continue tomorrow morning on those very amendments of Senator Dalphond.
[Translation]
We’ll also come back to the amendment moved by Senator Ringuette. We can all sleep on it and then see how we can achieve the bill’s objective. I think there’s a consensus around the table on the objective of the amendment. We simply have to agree on wording that can give it effect as efficiently as possible.
Senator Dalphond: Mr. Chair, I assure you that we will all sleep on it and that, if a consensus emerges during the night on Senator Ringuette’s amendment subsequent to the proposal, I will have no objection to going along with it.
The Chair: Very well.
[English]
Honourable senators, thank you for your cooperation this afternoon. Thank you to the officers of Treasury Board, the Information Commissioner, the Department of Justice and the other departments and Privy Council who were with us today.
We will resume tomorrow morning at 10:30, honourable senators, so that we can move on with consideration of Bill C-58.
(The committee adjourned.)