Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 12 - Appendix A
APPENDIX A
REMARKS TO SENATE SPECIAL
COMMITTEE ON ANTI-TERRORISM
(REVIEW OF THE ANTI-TERRORISM ACT)
Presented by Hon. John M. Reid, P.C., Information Commissioner of Canada
OTTAWA, ONTARIO
[2005-5-30]
Mr. Chairman, honourable members of this important committee, I am grateful for the opportunity to share with you some concerns I had, and still have, about certain provisions of what was once known as Bill C-36, which is now the Anti-terrorism Act, and to answer any questions you may have about the effect of this Act on the Access to Information Act. I am accompanied by my Deputy Commissioner, Alan Leadbeater; my legal counsel, Daniel Brunet and my Director General, Investigations and Reviews, Dan Dupuis.
I appeared before this, and the House, Committee in October 2001 when Bill C-36 was first being considered. At that time, the work was being conducted in the context of, and urgency associated with, unprecedented challenges to the security of Canada and her allies — especially the United States of America. So, too, the work of the Minister of Justice and her officials, in developing Bill C-36, was part of a race against time to give Canada strong legal tools to combat terrorism. Since then, there has been time for sober second thought.
As first introduced, section 87 of Bill C-36 would have authorized the Attorney General of Canada ``at any time'' to ``issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.'' That same provision also stated that the Access to Information Act would not apply to any such information.
The first version of section 87 of Bill C-36 contained no time limits on the period of secrecy. As well, it removed the authority of the Information Commissioner and the Federal Court of Canada to review the information covered by a certificate for the purpose of providing an independent assessment of whether or not secrecy was justifiable.
This unprecedented shift of power, from individual Canadians to the state, came under intense scrutiny by the Standing Committee on Justice and Human Rights of the House of Commons and by this special committee of the Senate. The then Minister of Justice, who is now the current Minister of Public Safety and Emergency Preparedness, was asked to explain the reason for this new blanket of secrecy.
In all of her evidence before the committees of the Senate and the House of Commons, the Minister offered only one explanation. The explanation is most exhaustively set out in her response, to a question posed by Mr. Michel Bellehumeur during the former Minister's appearance before the Justice and Human Rights Committee on October 18, 2001. Mr. Bellehumeur asked the Minister why she proposed to remove from the scope of the Access to Information Act (and from review by the Information Commissioner and the courts) the very type of information which the exemption contained in section 15 of the access law was designed to protect from disclosure. The Minister answered as follows:
``No, what section 15 does in fact is leave open, creates a loophole in terms of the possibility of disclosure of information that may have been provided to us by our allies and in fact we know that in relation to these sensitive matters where in fact one must work with ones allies — one is gathering intelligence, one shares intelligence — much of this speaks to the national security, not only of this country, but of other countries, and to the very lives of perhaps informants and others. Unless we can guarantee to our allies that that kind of limited, exceptionally sensitive information will not be subject to public disclosure, we will not get that information and we will not be able to fight terrorism as effectively as we should.
I'm afraid, Mr. Chair, that under existing access legislation, there is a loophole created because it permits the Access Commissioner to make certain recommendations. In fact, as far as we're concerned, that is not sufficient for our allies and we must do that which is necessary to ensure we have the best information and we are protecting that exceptionally sensitive information.''
I, and others, challenged the Minister to explain the ``loophole'' — it could not be the Commissioner, as he has no power to order the disclosure of records. I reminded the Minister of a government-commissioned study, which concluded that the Access to Information Act posed no risk of possible disclosure of sensitive intelligence information, that no such information had ever been disclosed under the Act in the 18 years of its life and that the Access to Information Act régime offered as much or more secrecy to intelligence information as do the laws of our allies.
The only ``loophole,'' thus, could be the possibility that a misguided judge of the Federal Court would order the disclosure of sensitive intelligence information, notwithstanding a clear exemption of such information contained in the Access law. Given the Federal Court history of applying sections 13 and 15 of the Access law, and the presence of appeal mechanisms to the Federal Court of Appeal and Supreme Court of Canada, the ``misguided judge,'' theory had no rational basis. Moreover, there was an air of unreality to the former Minister's suggestion that our allies had asked the government to give them a ``guarantee'' by plugging the ``misguided judge'' loophole. I asked the former Minister to produce the evidence of any such request; none was forthcoming.
The Minister could not produce the evidence because our major allies and suppliers of intelligence also operate under freedom of information laws, which include avenues of independent review. They understand that the purpose of these laws is to remove the caprice from decisions about secrecy, by subjecting such decisions to a legislative and judicial system of definition and review. The allies want no more than the simple assurance from Canada that intelligence information which needs to be protected can be protected. Not a single ally doubts Canada's ability to do so under the existing Access to Information Act.
In the face of the criticism, the former Minister went back to the drawing board and made a number of changes. It would be a mistake to assume, however, that these changes amounted to concessions to her critics. In fact, the amendments — which are now part of the law — broadened the sweeping scope of secrecy certificates, giving the Attorney General the power to cloak in secrecy information on any subject provided in confidence by any person, group or foreign power, and increased the power of the Attorney General to interfere with the independent investigations of the Information Commissioner.
Let this sink in for a moment. The federal government has given itself, by virtue of sections 38.13 and 87 of the Anti- terrorism Act, the legal tools to stop in its tracks any independent review of denials of access under the Access to Information Act. The interference is not even limited to the information covered by the secrecy certificates. This is so, because if, during the Information Commissioner's investigation, a secrecy certificate is issued, pursuant to section 38.13 of the Anti-terrorism Act, with respect to even one record of all those covered by an access request, the Commissioner's investigation is discontinued in its entirety. If the matter has proceeded past the investigation stage and on to a Federal Court review, the issuance of a secrecy certificate, for even one record, has the effect of discontinuing the entirety of the Federal Court review.
Yes, the former Minister of Justice protested that this outcome was not what she intended. She said she intended that the Commissioner's investigations, and any court reviews, would be discontinued only insofar as they related to the information covered by the certificate, but the clear words of the Act contradicted her protestations. At a minimum, then, section 87 of the Anti-terrorism Act should be rewritten in the same terms as sections 103 and 104.
It is my strong belief, based on a review of 22 years of experience under our Act — experience during times of war and crisis, involving exchanges of highly sensitive information among allies — that our Access to Information Act poses no threat whatsoever to international relations, national defence or the security of Canada. Section 13, 15 and 16 of the Act contain powerfully and broadly worded exemptions from the right of access designed to ensure that no information will be disclosed which would be injurious to international relations, the defence of Canada or the efforts of Canada to detect, prevent or suppress subversive or hostile activities. I invite you to read those provisions for yourself and you will see the detailed and robust protections which Parliament had the foresight to put into the Act.
From all the public explanations given by the government concerning the motivation for this proposal, it would appear that the government itself has no doubt that the Access to Information Act contains fully adequate protections for information the disclosure of which could injure international relations, defence or security. Their explanation is that, since our scheme contains a right of independent review, the government cannot give its allies a 100 per cent, iron- clad guarantee that information provided by them to Canada will remain secret.
Personally, I find it hard to believe that the government of any one of our major allies would insist, as a condition of information sharing, that decisions about secrecy in Canada be entirely free from the rigors of statutory standards and independent review. In the conversations my office has had with our allied jurisdictions, it is our understanding that they all want the same thing: They want the simple assurance that what needs to be protected can be protected. None of them doubts Canada's ability to do so under the existing Access to Information Act.
An independent review in 2001, by Professor Wesley K. Wark of the University of Toronto, in a study entitled: The Access to Information Act and the Security and Intelligence Community in Canada, (commissioned by the Minister of Justice and President of Treasury Board), gave unequivocal assurances as to the strength of the protections for national security information contained in the Access to Information Act.
Since 1983 the Access to Information Act has been reviewed in great detail by a standing committee of Parliament, an ad hoc committee of the House of Commons, two Information Commissioners and at least three separate reviews by public servants (the most recent being the Task Force on Reform of the Access to Information Act). Never, not once in these reviews, has it been suggested that sections 13, 15 and/or 16 of the Access to Information Act are insufficiently strong to enable the government with confidence to protect information the disclosure of which could be injurious to international relations, defence of Canada or security. Never once, during all these studies, has it been suggested that independent oversight by the Information Commissioner and the courts somehow puts vital secrets at risk.
In the 22 years since the Access to Information Act has come into force, inappropriate disclosures of security and intelligence information has not been the fault of the Access to Information Act. In those rare occasions when it has occurred, the fault lay with indiscreet Ministerial aides, former intelligence operatives turned authors, misplaced briefcases and computers and, at times, revelations by Ministers. The measures set out in section 87 of the Anti- terrorism Act are, quite simply, unnecessary and misplaced. I urge the committee to recommend its removal from the Act.
Even if there were some reason to be concerned about the sufficiency of the existing exemptions to protect sensitive information, would the government's current solution be appropriate? Would it strike the right balance between protecting Canadians from terrorists and protecting them from state abuse? In my view, the government has a powerful tool to protect secrecy in section 38.02 of the Anti-terrorism Act. It does not have a demonstrable need for the section 38.13 certificate or for the section 87 interference with the Access to Information Act's scheme. These additional measures open the door to self-serving secrecy rather than secrecy which truly serves the public interest.
We can and should trust the power of the exemptions contained in the Act. We should trust the common sense and integrity of the judges of the Federal and Supreme Courts who review decisions taken by government to invoke those exemptions or to assert secrecy under section 38.02 of the Anti-terrorism Act.
May I say how insulting to the Federal Court, and unjustifiable by any measure, are the provisions of the Anti- terrorism Act which impose on the court blanket ex parte hearing, and non-disclosure requirements during reviews of sections 37, 38 and 38.13 certificates.
With respect to reviews of section 38.13 certificates, the Act provides that one judge of the Federal Court of Appeal will hear the matter and that, while his or her decision will be final, the scope of review is so narrow as to render the review ineffectual. There is no reasonable justification for these limits on the right of appeal and the traditional role of the Court of Appeal.
My hope is that my comments will help reassure honourable members of this committee and, through you, the government, that sections 38.13 and 87 of the Anti-terrorism Act do not strike the right balance and should be removed.
If these provisions are not removed, they should be focussed by specific reference to the provisions of sections 13 and 15 of the Access to Information Act, they should not prevent the Information Commissioner from examining the information during the course of his investigations and they should not prevent the Federal Court of Appeal from conducting a substantive, rather than pro forma, review of secrecy certificates. Finally, it goes without saying that, in my view, the 15-year period is unjustifiably long; it should be limited to the shortest possible period of time, no longer than five years.
Thank you.