Canada's Original Think Tank

Report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, with amendments and observations

Report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, with amendments and observations

Report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, with amendments and observations

Hon. Serge Joyal moved the adoption of the report.

He said: Honourable senators, I only have 15 minutes at my disposal to try to give you, in a nutshell, the result of the Standing Senate Committee on Legal and Constitutional Affairs’ study on Bill C-58. It is, of course, a very important bill, since the first system of access to information was adopted by the Parliament of Canada in 1983, when I was a young member of Parliament in the other place, and it has not been reviewed since then.

Here I am, at 74 years old, tasked with the responsibility, along with the members of the Legal and Constitutional Affairs Committee, to review the system. I have been privileged to lead that exercise because it was an exercise in collegiality. I think the Senate was at its best in that committee when we undertook our review of Bill C-58.

To give you an idea of the mammoth task that we have achieved, the committee held 20 different meetings, during 13 of which we heard 53 experts and witnesses. We received more than 23 briefs and we held seven meetings for clause-by-clause consideration of the bill.

Honourable senators, we adopted 35 amendments to the original bill. You can imagine that was a record in this Parliament for the number of amendments that we suggested for a bill. But I would not have been able to report to you on behalf of the committee today were it not for the support of the committee’s deputy chairs, Senator Dupuis and Senateur Boisvenu. I must also mention the role played by the sponsor of the bill, Senator Ringuette, and the bill’s critic, Senator Carignan, who was supported by Senator Boisvenu.

Eight of the committee’s 12 members introduced amendments, so it was not the initiative of only one senator. Two thirds of the senators around the table introduced amendments.

The amendments were introduced, I think, in the spirit of the important role that the Senate plays, which is that of sober second thought and the independent review of legislation. This legislation is fundamental, honourable senators, because access to information is a quasi-constitutional right, and I insist on this. Any Canadian citizen making an access to information request is exercising their quasi-constitutional right under section 2 of the Charter.

I will read a brief excerpt from the Supreme Court decision of 2011, wherein Mr. Justice LeBel stated the following:

Access to information legislation embodies values that are fundamental to our democracy. In Criminal Lawyers’ Association, this Court recognized that where access to government information is essential, it is protected by the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms as a derivative right. Statutes that protect Charter rights have often been found to have quasi-constitutional status.

So we did approach our study in the context that access to information is a right, and so the bill should seek to improve access and the exercising of rights, and not the other way around, to try to find reasons to limit access to information.

It was through this intellectual framework that all members of the committee around the table embarked on that study. I will give you, in a nutshell, many of the amendments that were proposed, and you will understand that our objective was met by the amendments that we are proposing to you today.

The first set of amendments tried to expand access to information by allowing the administration to leave the fees requested to have access. That amendment was introduced by our colleague, Senator Pratte. Some other amendments aimed to limit the objections of the administration to refuse access to only one set of cause if the request is deemed vexatious or in bad faith. Looking at our friend Senator Wetston, vexatious requests have been the object of multiple decisions in the courts, so if the administration claims the request is vexatious, it doesn’t have an open-ended discretion. In fact, there is jurisprudence that establishes very clearly the framework through which an allegation of vexatious arguments can be raised.

We also curtailed the time limit for the administration to request additional time to give an answer so that it’s not an open-ended schedule for the administration. This in our opinion was very important.

The second important group of issues that we considered was in relation to Aboriginal peoples, and I say that with respect to our Aboriginal colleagues. During the study that we conducted, there were no Aboriginal senators present, but I have to reassure you, honourable senators, that we did our job very thoroughly in relation to the rights of Aboriginal people to have access to information, so much so that we heard Senator Dupuis testify as an expert when she was charged by the Quebec government leading to the land claim settlements that were introduced by Aboriginal people in Quebec.

We came forward with a commitment in a formal letter from the President of the Treasury Board on February 25, which you will find on pages 28 and 29 of our report. There are seven government commitments in relation to Aboriginal people and their access to the information they need to support their land claims and the fact that the treaties that have been signed have not been respected. All of that information, as you know, honourable senators, has been detained by the Department of Crown–Indigenous Relations, formerly known as the Indian Affairs Department.

We have very specific recommendations in relation to that, and it is important because one of our other amendments to the bill is to propose a parliamentary review within a year, while, in fact, the bill originally contained only a ministerial review. A ministerial review is the review of the administration side; it is not the review of the consumer side. It is important that, in those commitments taken by the President of the Treasury Board in relation to Aboriginal issues within the year that we will have for review, we could follow up on those commitments. I’m very proud, honourable senators, to be able to report to you on behalf of the members of the committee that we paid due respect to Aboriginal concerns, even though there were no Aboriginal senators in attendance at the committee’s meetings for that particular study.

The other group of amendments that we introduced, honourable senators, was in relation to the power of the Information Commissioner.

The Information Commissioner is essentially the agent or the person charged with the task to take upon himself or herself to follow up on a request from Canadians seeking information who don’t receive an answer in due time with the content of information sought.

(1510)

We introduced an element in the capacity of the Information Commissioner to have his order to the administration be certified. I’m looking at my colleagues who have sat on the bench. They will understand that when an order is certified, it has a much more compelling impact on the administration. We were concerned about the followup of a refusal of the administration to deliver the information on time.

We studied in that the capacity to allow for judicial review of a certified order for the bill . We had an amendment, and were concerned that if we were to introduce that amendment to measure the impact of that amendment on the system. We called back the Information Commissioner to testify. She informed us she would expect such opportunities in the next phase of review for the legislation. We limited our amendment to the certification of the order of the commissioner to the administration.

It is a very important step, honourable senators. I would want to thank the honourable members of the committee. That amendment was supported enthusiastically by all the members, be they Senators Pratte, Dalphond, Carignan, Boisvenu and others on the committee.

Among the other amendments, there was one that is of concern to the Speaker of our chamber. The bill was wrongly describing the responsibility of our Speaker in the determination of privilege. As you know, the Speaker in this chamber has a different status than the Speaker in the other place. In this place, the decisions of the Speaker are appealable; in other words, this chamber can challenge the Speaker’s decision on privilege while, in the other place, the decision of the Speaker is final.

The bill was phrased in a way that it didn’t pay due respect to that status. I thank Senator Batters. She was the first to raise it at committee. We were able to amend the bill to ensure it reflected the particular status of the Senate. This amendment was welcomed by all members.

The other group of amendments that were brought to the bill was in relation to what we call proactive disclosure. In other words, as you know, ministers, MPs and senators are called now under the bill to declare every three months their expenses, hospitality, travel and so forth. The bill ventured in a new field, which is for the members of the Canadian court to also disclose their information. And the way the bill was structured, there was certainly a very strong risk of impinging upon the principle of judicial independence. The principle of judicial independence is well established in Canadian law. There are three components to it — I won’t give you a lecture on judicial independence this afternoon, since I only have two minutes left.

The conclusion was that the bill could be amended to maintain and satisfy the objective of transparency that the government was aiming to get, while at the same time balancing it with the capacity of the judiciary to manage its own affairs and to protect the fact that the judges cannot defend themselves when they are alleged to have overspent. They have the obligation of restraint.

The personal security of judges are also challenged. We were mindful that there was a recent situation that happened in Canada whereby former Justice Alban Garon, his wife and a friend of his wife’s were killed by somebody who was unhappy with the decision that Mr. Garon had rendered some 10 years previous. We were concerned that by giving justices’ information that could be easily accessed by disgruntled parties, we were doing something that was not proper. That is why Senator Dalphond proposed a compromise that was, in our opinion, the best way to approach this issue to protect the security, independence and capacity of our system to function on the fundamental principle of judicial independence.

Finally, honourable senators, the government really benefits from the exercise of the committee. I will tell you why. The government introduced, through Senator Ringuette, 20 amendments to the original bill. You could imagine that if we would have expedited that bill — a senator raised that issue — I don’t remember which senator — that we should be doing our work fast. Sober second thought takes time. It’s like the soup on the back burner of the stove. Let it rest a while. When you reheat it, the flavour will be thicker.

On this bill, we took our time. We started the study of the bill in October. We had to adjourn for the government bills in relation to the electoral act and the estimates. At the end of it, the government itself came to us to ask for some amendments. It tells you that when we take our time, do our due diligence — we are not lazy; we are not trying to beat time — we come forward with —

The Hon. the Speaker pro tempore: Your time has expired, honourable senator.

Senator Joyal: May I have two minutes more?

Some Hon. Senators: Five!

The Hon. the Speaker pro tempore: Do I have leave, honourable senators, to grant five more minutes?

Hon. Senators: Agreed.

Senator Joyal: We come to you with a bill that is largely improved and more protective of the rights of citizens to have access to information. It is largely more protective of the fundamental constitutional principle of judicial independence and largely more protective of the right of the Aboriginal people to have access to the information they need to establish their claims in court.

We established the context into which we have a better democracy. Access to information is also linked to the exercise of the democratic rights of Canadians to know what their government is doing with their information and to have that information available to the press and media to do their job. It’s part of the democratic exercise. We end up being a better country as a whole.

Honourable senators, we have observations in the report that I invite you to read, because those observations, minority and majority observations, raise important issues we will have to deal with in the next phase of the improvement of our system. This exercise of the Legal and Constitutional Affairs Committee should be quoted as an example of efficiency, seriousness, dedication and a result that will totally stand the test of time. Thank you.