Honourable senators, today I rise at third reading 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.

The first thing I want to say is that I was deeply disappointed by this bill. Why was I disappointed? Because I had high expectations for this bill.

The Access to Information Act is a foundational tool in a free and democratic society, and Canada is a free and democratic society. Many people eagerly anticipated an overhaul of the over-30-year-old Access to Information Act, but what we have before us is very disappointing.

This despite the fact that the government gave clear instructions in the mandate letters for ministers involved in this reform: the Minister of Justice, the Minister of Democratic Institutions, and the President of the Treasury Board. One might even hope that if three ministers were mandated to work towards the same objective, it must be a real priority for the government.

Consider this excerpt from the mandate letter for the Minister of Justice, which deals with reforming the Access to Information Act, and I quote:

Work with the President of the Treasury Board to enhance the openness of government, including supporting his review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.

I’m sure you’ll agree, honourable senators, that it was all very promising, and even enticing. Unfortunately, Bill C-58 did not live up to expectations.

I would now like to quote some of the witnesses who appeared in committee.

The former Information Commissioner stated the following on September 28, 2017:

After studying the bill, I have concluded that the proposed amendments to the Access to Information Act will not advance government transparency. The proposed bill fails to deliver on the government’s promises. If passed, it would result in a regression of existing rights.

On February 23, 2018, she stated:

We had hoped that access to information reform would be [progressive], but the reform is [regressive], and it’s extremely worrying.

The president of the Fédération professionnelle des journalistes du Québec, Stéphane Giroux, recently told our committee the following:

Departments will continue to refer to exceptions to the act in order to not provide information, and nothing is resolved in terms of the time frames. It’s a failure across the board.

As you can see, I wasn’t the only one who was disappointed. A year and a half ago, we unanimously passed, in both chambers, Bill S-231 on journalistic sources protection. Any outside observer watching both chambers vote unanimously on such a bill, which was based on highly democratic values and principles and recognized that journalism is central to our free and democratic society, would never believe that this same government that had just supported this bill was the one introducing Bill C-58. It is truly very hard to understand.

Quite honestly, honourable senators, I expected the Trudeau government to take this reform much more seriously. I certainly did not expect it to introduce a bill that would set back access to information for individuals and various information professionals.

I am not saying that to be mean-spirited. I sincerely believed that the government would introduce a modern, robust bill that responded to the reality of this age of rapid communications, but that sadly that was not the case. Once again, the government signalled left and turned right. We have to admit that that is becoming its trademark.

However, there is good news. The good news is that we have the Senate.

You all know that the Senate’s job is to provide sober second thought on bills passed in the other place. This is what we did with Bill C-58. The Standing Senate Committee on Legal and Constitutional Affairs carefully and thoughtfully studied this bill. Some say we took too long, but I don’t agree. The Senate is independent and must not be unduly pressured when studying bills. We are part of the legislative process and we must understand and respect the importance of our role.

Furthermore, I want to point out, dear colleagues, that one of the reasons why the study of Bill C-58 took several months was that the former Minister of Justice never appeared to testify before the committee. We mentioned this in our observations appended to the report. I think it’s disrespectful for a minister with such a great responsibility to not bother testifying before a Senate committee. However, I want to commend the new Minister of Justice for making himself available to testify so quickly after being appointed. I think senators will agree that it is rather worrisome for a minister to shirk her responsibilities, especially when we are studying government transparency.

Before I go any further, I would like to acknowledge the remarkable work of the members of the Standing Senate Committee on Legal and Constitutional Affairs, particularly that of our chair, Senator Serge Joyal, and the two deputy chairs, Senator Pierre-Hugues Boisvenu and Senator Renée Dupuis. This was an extensive and demanding study, and everyone took it very seriously and devoted a great deal of time to it. The final result speaks for itself. The clause-by-clause consideration of Bill C-58 clearly showed all of the flaws the government bill contained in its original form. We adopted over 50 amendments to Bill C-58, which is rare for a Senate committee. Usually, when a government bill is amended in the Senate, there are only about five amendments at most. This time, even the government suggested some 20 amendments. That simply shows that the government did not take the reform of the Access to Information Act seriously.

Many amendments were presented by the opposition in order to enhance transparency and facilitate access to information, which, you will recall, are key to our democracy.

A majority of members of the Standing Committee on Legal and Constitutional Affairs blocked the government’s attempt to restrict access to information by eliminating the requirement that federal institutions maintain a directory of federal institutions, as set out in section 5 of the Access to Information Act. That directory is better known as Info Source. Senators simply deleted that clause, which would have eliminated Info Source.

As the Fédération professionnelle des journalistes du Québec stated in its submission to the Senate committee last fall, and I quote:

The corollary to the production and conservation of documents . . . is the notion that organizations have the necessary systems to efficiently locate documents.

Senators also did away with new provisions imposing onerous requirements on those requesting access to information. The bill’s clause 6 would have created barriers to access to information, barriers that senators in large part removed. Under the original clause, those making requests would have to be very specific about the type of document requested and the exact date of publication, and they would have to do so without Info Source. The clause also included reasons for which an institution could decline to act on otherwise legitimate requests for access to government documents.

The committee also proposed an amendment that sets time limits for responding to access to information requests. Additional time for the production of documents subject to an access to information request, for which the usual deadline is 30 days, cannot exceed an additional period of 30 days without written consent from the Information Commissioner. That amendment had been requested by several stakeholders, including the Fédération professionnelle des journalistes du Québec. There is currently no maximum limit for a legal time extension of 30 days under section 9 of the Access to Information Act.

Another important change made by senators on the Legal and Constitutional Affairs Committee seeks to give the Information Commissioner the possibility of filing orders to the Federal Court. The new provision reads as follows:

(6) An order under subsection (1) that is in effect may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Information Commissioner filing a certified copy of the order in the Registry of the Court.

To me this change is critically important, because several witnesses told us that when orders issued by the Information Commissioner were not followed and executed by the institutions involved, the orders did not produce the desired effect and there were no consequences for the non-compliant parties. There was also no real follow-up mechanism. With the new power conferred on the Information Commissioner, a refusal to comply with an order from the commissioner, filed to the Registry of the Federal Court, could constitute contempt of court.

The committee also adopted a new amendment to prohibit the use of 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. This amendment is in response to the case of Vice-Admiral Norman, who is on trial for breach of trust. It was proven that the accused did not get access to several defence department documents because his name had been replaced with code names. Mr. Norman’s lawyer made requests to the defence department for all communications involving Vice-Admiral Norman. The person responsible for access to information found nothing. He then spoke to his superior, who told him that all communications involving Mr. Norman were coded. In fact the only document found was the list of code names for military personnel. The very fairness of Mr. Norman’s trial was marred by a practice that circumvents the access to information regime in an insidious and unacceptable way. The amendment we adopted addresses this situation.

The Conservative senators tried to pass amendments that would have forced federal institutions to further document the decision-making process. Ministers would have been required to draft instructions and guidelines for creating and preserving federal government documents and sharing them with institutions. This obligation would have forced the Prime Minister’s Office and ministers’ offices to document and publish information taken into account in their decision-making process.

Among senior public servants, there is a common practice to put the pencil down during meetings to ensure there are as few notes as possible that could potentially be subject to an access to information request. The amendment we proposed would simply have required ministers to provide guidelines regarding the information to be collected and preserved. Unfortunately, this amendment was rejected by the independent senators.

An amendment to make mandatory the proactive disclosure of removal and relocation expenses of political staffers met the same fate. Let’s not forget that over $220,000 in relocation expenses for Gerald Butts and Katie Telford, staffers from the Prime Minister’s Office, were brought to light thanks to an access to information request made by the Conservatives. That alone demonstrates how important it is to ensure that these expenses are disclosed in a timely manner. Unfortunately, once again, most of the independent senators did not seem to think that information was relevant.

A lot of work still needs to be done to improve this bill. I hope that we will be able to continue to fine-tune it at third reading stage. With that in mind, I would like to read another excerpt from the President of the Treasury Board’s mandate letter. This small and simple phrase is of the utmost importance. It says, and I quote:

Work with the Minister of Justice to enhance the openness of government, including leading a review of the Access to Information Act to ensure that Canadians have easier access to their own personal information, that the Information Commissioner is empowered to order government information to be released and . . .

I would like to draw your attention to this last part in particular:

 . . . that the Act applies appropriately to the Prime Minister’s and Ministers’ Offices, as well as administrative institutions that support Parliament and the courts.

Sadly, honourable senators, the bill, as it is currently written, does not meet that objective. Yet that was one of the Prime Minister’s major commitments during the last election campaign. What happened that caused the Prime Minister to go back on his promise? By not subjecting ministers’ offices to the Access to Information Act, the government is being opaque and doing the opposite of what we would expect from an open and transparent government. Also, by refusing to amend the bill to require ministers to issue directives to provide more information about various government decisions, the government is making its administration even more opaque.

In that regard, the Fédération professionnelle des journalistes du Québec told us the following:

Journalists who would like to obtain certain crucial documents that attest to government decisions cannot determine that they have actually been produced, since there is nothing in this bill that requires the government and its entities to disclose them upstream. This very often means that journalists who have made access requests are told that the documents do not exist.

Recommendation: That an explicit provision be incorporated into the Act to ensure that government documents that attest to government decisions are produced and preserved.

Clearly, the government is under no obligation to document its decisions.