Honourable senators, I rise today to speak on the amendments to the Access to Information Act proposed in Bill C-58.

In reflecting on this legislation, I have benefited from the insights of Senators Ringuette and Pratte. Senator Ringuette, in her speech as the sponsor of the bill, gave us a powerful reminder of the importance of its objective. Access to information is the heart of a functioning, accountable democracy.

I also share many of Senator Pratte’s concerns about ensuring that Bill C-58 fulfills its stated objectives of accountability, transparency and accessibility.

Senator Pratte’s speech drafted a blueprint for considering these issues at committee, and we appreciate his vital and thoughtful identification of our constitutional obligations.

My goal today is to emphasize another facet of our constitutional responsibility. I refer to the duty of the Senate to represent those who are most marginalized and generally unrepresented or underrepresented.

As we consider the accessibility of information pursuant to Bill C-58, I urge that we turn our attention to the experiences of those who are marginalized in Canada, those most likely to experience systemic violations of fundamental Charter rights and human rights. Too many face unequal starting points when it comes to collecting information necessary to advocate for themselves or others, to challenge government policies and to defend their rights in court.

Indigenous peoples have raised serious concerns about Bill C-58. As Senator Boniface mentioned during the question period with Minister Brison last month, the Assembly of First Nations, or AFN, passed a resolution in December 2017 calling for the government to withdraw Bill C-58. The AFN argued that the government created this bill without consulting with Indigenous peoples, thus increasing the risk that the bill will disproportionately disadvantage them.

As one example of disproportionate disadvantage, a body of land claims experts, the National Claims Research Directors, referred the committee in the other place to clause 6 of the bill. Senator Pratte has already outlined the barriers that clause 6 creates for all types of information requests through new obligations to identify the specific subject matter of the request, the type of record being requested and the period or date of the relevant record. Clause 6 also gives government institutions a never-before-seen option even to refuse requests for information.

For First Nations peoples, clause 6 carries the additional threat of affecting land claims and governance processes and, by extension, federal recognition of inherent rights of Indigenous peoples to self-determination. First Nations peoples rely on information requests to obtain vital documentary evidence from the federal government of Canada for land claims and other disputes with the federal government.

In addition to the duties owed to Indigenous peoples under Canada’s constitution, fair and equal access to information is an essential aspect for providing redress under Article 11 of the United Nations Declaration of the Rights of Indigenous Peoples. Article 19 of UNDRIP further requires the government to consult and cooperate with Indigenous peoples and to obtain their prior and informed consent before adopting legislative or administrative measures that may affect them. Both of these rights are at stake.

Honourable senators, let’s make sure that Indigenous peoples’ views on the future of this bill and access to information in Canada are heard. Bill C-58 is an opportunity for the government to make up for its lack of consultation and to fulfill its commitments with regard to reconciliation with Indigenous peoples.

In order to fully consider the effects of Bill C-58, we must also consider the experience of those inside prisons. As those of us on the Human Rights Committee have witnessed, systemic violations of fundamental rights by government actors are appallingly routine in federal prisons. Part of the reason that they go unchecked relates directly to the barriers to obtaining the information necessary to file and pursue complaints and grievances, much less to advocate and litigate them.

The Senate Human Rights Committee has heard first-hand about the types of human rights violations and the resulting sense of hopelessness and despair that prisoners without access to redress experience. Members of the Aboriginal Peoples Committee visited the Saskatchewan Penitentiary, where they also heard from Indigenous prisoners about the multitude of ways in which prisons both create and exacerbate racism and inequality.

It would be helpful if Bill C-58 could enhance our collective and prisoners’ individual abilities to expose their experiences of racism, violent uses of force, breaches of law and policy, including staff inciting discrimination — and even as we heard throughout the Maritimes, racist violence, as well as attitudes that reward younger prisoners who prey upon those who are older or who have mental health issues.

As I have experienced for decades, over and over during our visits committee members heard that mechanisms meant to provide oversight and increased accountability and transparency of the Correctional Service of Canada, CSC, are not working. Virtually every prisoner told us that the internal complaint and grievance process, the only legal administrative remedial avenue available for prisoners to try to address breaches of the law and policy by CSC, is broken and ineffective. This view was recently reiterated by the B.C. Superior Court in respect of excessive and unreasonable delays in decisions regarding long-term segregation and the ineffectiveness of the CSC grievance system in remedying these situations.

There is every indication that there are serious flaws regarding access to information in prisons.

When the Privacy Commissioner appeared before the Human Rights Committee, he indicated that although they are entitled to responses within 30 days, prisoners wait, on average, two years, if ever, for CSC to release requested information. In my experience, access to information, whether under the Privacy Act or the Access to Information Act, can often take much longer. After that committee meeting, a prisoner wrote to me about information requests he had submitted to CSC, one of which took 1,032 days to complete and required numerous external interventions.

When Ashley Smith signed a consent form and requested I obtain information denied to her under the Privacy Act but died while waiting for it to be processed, CSC refused to release the information, saying they could no longer confirm that she wanted me to receive the information on her behalf because of a three-month delay in their response. This decision was appealed to the Privacy Commissioner and ended up in Federal Court. Her request and grievances, filed three weeks before she died, were not retrieved until more than two months after her death; and only after the Office of the Correctional Investigator intervened did CSC actually look for the grievance and ATIP request. It turns out the box had not been emptied in three months.

More than five years after the initial access complaint and after two trips to the Federal Court, the court ordered CSC to release the information, but CSC never fully complied with the order. Moreover, it has now been more than 10 years since that initial request.

Unfortunately, in my experience, the difficulties and delays associated with Ashley’s case are not unusual. Furthermore, Ashley’s case involved lawyers and others outside the prison system. Imagine the situation for an individual in prison, isolated in segregation and without access to supports or advocates or even writing materials and how they might even attempt to request information from CSC on their own.

When I look at Bill C-58, all kinds of questions come to mind about new barriers that could undermine access to information.

Prisoners do not have access to email or the Internet. Their ability to make calls is limited. For those in segregation, a category that includes women classified as maximum-security prisoners, even obtaining paperwork or crayons, much less pens, may be a challenge.

The up-to-$25 filing fee contemplated by Bill C-58 will pose a significant financial burden to those who most need it: prisoners, poor people and those with personal and procedural barriers to equality. The absence of tools that most of us would rely on to submit an information request, let alone to meet the additional requirements established in clause 6 of the bill, may put access to information beyond the reach of far too many.

The new clause 6 requirement to identify a specific subject matter, type of record and date of record runs the risk of giving government departments like CSC further latitude to delay responding to information requests. I cannot tell you how many times my requests — as well as those of others — have been denied because I did not know the precise title or date of a particular document.

Clause 6 allows CSC and other government bodies to deny access-to-information requests. While Bill C-58 contemplates certain checks on this and other powers of government bodies, there are numerous reasons to question the robustness of these measures.

Senator Pratte is concerned about limitations on the ability of the Information Commissioner to ensure that government bodies abide by legislation, including her own powers to order compliance.

I agree.

Furthermore, the effectiveness of the Information Commissioner may be further compromised if barriers to communicating with prisoners are not overcome. In-person visits to prisons are but one example.

The entrenched culture within CSC of denial and defending the indefensible stands in stark contrast to legislative requirements to assist applicants with their information requests. CSC staff have too often put significant pressure on prisoners to withdraw charges, complaints or access requests.

I recently received a letter from another prisoner in connection with my work on the Human Rights Committee. He wanted to tell me about the issues he was facing but did not want any staff to get in trouble. Staff had told him if he reported that he had any concerns, he would need to “look for a new prison.”

They also indicated that communicating with me was not a good idea. This type of pressure is a function of the unequal power within the prison system and results in far too many information requests and complaints from prisoners being withdrawn and never actually resolved.

The saying that we can judge our society by how it treats its most vulnerable members is most apt here. As senators with an obligation to represent the underrepresented and the most dispossessed and marginalized, I believe we must judge our laws by the same measure.

Honourable colleagues, as we proceed to study Bill C-58 at committee, I urge us to focus on the experiences of those who are too often marginalized and overlooked. Only then can we hope to make information necessary to advocate, to challenge unjust laws and policies and to uphold our human and Charter protected rights, not to mention justice, equality and fairness, accessible to all.

Thank you, meegwetch.