Remarks to the Canadian Bar Association

VANCOUVER, BRITISH COLUMBIA

[2004-5-12]

There are occasions in both private and public life where it seems appropriate to take stock – to see where we’ve been and to attempt to see what the future may hold. A change of government is one of those times in public life. In the time available to me today, I am going to give you a brief look at the state of the health of the Access to Information Act and a prognosis for the future health of the Act under the new Martin government.

While I don’t want to use the health metaphor unduly, I think it is fair to say, that, as of the date that Mr. Martin became Prime Minister, the condition of the Access to Information Act could only be described as "guarded". Almost from the date of it coming into force, July 1, 1983, the Act suffered from neglect, ignorance and attacks from within the public service and from the government of Brian Mulroney. When Jean Chrétien became Prime Minister, amid promises of a new régime of transparency and accountability, it seemed as if there might yet be hope for the Act. It didn’t take long for those hopes to be dashed. A culture of secrecy, built on notions such as "ministerial accountability" and "public service anonymity," was stronger than many realized.

Time does not permit me even to mention, except in passing, all of the ways in which the Act has been challenged by successive governments. They are not dissimilar to what has been experienced in all jurisdictions that adopt a right of access, including the experience here in British Columbia. There has been the overbroad application of exemptions and exclusions; attempts to discourage use of the law by high fees and excessive delays; destruction and alternation of records; failure to make records or to include them in official filing systems, inadequate searches and efforts to weaken oversight by challenging the investigative powers of Information Commissioners and starving them of the necessary resources to do the job.

When I became Commissioner six years ago, my biggest surprise was that obedience to the spirit and words of the Access to Information Act had not become embedded in the Public Service after 15 years of the Act’s operation. As you can see, what has become embedded is a strong desire to avoid the rigors of openness by too many in the Public Service.

COURT CHALLENGES

In the past four years, at the federal level, there were some 30 judicial review applications taken by the Crown against the Information Commissioner seeking to prevent investigations from reaching into the offices of Ministers and the Prime Minister. These cases, which began in 1999, were decided on March 25, of this year. Mr. Leadbeater will tell you more about these decisions in his remarks

I think that most informed observers were not surprised when governments treated the Access to Information Act as a secrecy Act. After all, it contains some 13 justifications for secrecy, some of them mandatory. I, for one was not surprised that, for example, public officials began to justify a wide realm of secrecy to protect their own privacy. The only two cases under the Access to Information Act to have reached the Supreme Court of Canada have concerned this issue of how much privacy should be accorded to information about public officials. Both cases found that the zone of privacy had been cast too broadly and that inadequate weight has been given to the need for public accountability of public officials. This issue is still contentious. At present, the courts in P.E.I. are considering the legitimacy of the provincial government’s refusal to disclose a list of the names of public servants in order to protect individual privacy

As well, I was not surprised when governments tried to expand the reach of executive secrecy by giving the broadest possible interpretation to the notion of "cabinet confidence." Two recent cases, one a decision of the Supreme Court of Canada in Babcock (some in this room may have been parties) and one a decision of the Federal Court of Appeal in Ethyl Canada, put some long-overdue limits on the government’s ability to assert the cabinet confidence privilege under the Canada Evidence Act and the Access to Information Act.

And we have not heard the last word on this matter, as the Privy Council Office struggles to give effect to the greater degree of openness called for by the courts without compromising the cabinet’s ability to cloak its work in secrecy. The most recent slight of hand is for background material to be removed from the cabinet confidence privilege (as required by Ethyl) but be recloaked in secrecy under the advice exemption.

On the other hand, there were some real surprises—I, for one, did not expect very senior officials to engage in sneaky, treacherous acts of wrongdoing to undermine the right of access. And yet, we have had more than our share of such cases. You will recall the former Chief of Defence staff who stepped down after it was revealed that he had counseled his subordinates to re-title documents and, when access requests were received using the original title, to answer that no such records exist. As well, there was the destruction of the audiotapes and transcripts of the meetings of the Canadian Blood Committee at the height of concern over tainted blood, to avoid disclosing them in response to an access request.

In one case, a Deputy Minister learned the identity of a requester who had asked for the DM’s expense claims. The DM wrote to the requester demanding to know why and insisting that such requests cease. When asked by the Information Commissioner to explain who had informed the DM of the requester’s identity, the DM simply refused and challenged, in the courts, the Commissioners authority to try and punish him for contempt. When he lost his legal case, the DM agreed to answer the question and the answer he gave (even after months of court wrangling) was: "I can’t remember." None of us expected that senior public officials would be so willing to sacrifice their honesty and integrity to protect the culture of secrecy.

These issues were serious enough to prompt Parliament to pass, unanimously, Colleen Beaumier’s private member’s bill which added section 67.1 to the Act. This section creates an offence for destroying, mutilating, altering, falsifying or concealing a record with the intent to deny a right of access or to direct, propose, counsel or cause anyone to do so. The penalties are stiff, including, upon conviction of an indictable offence, a prison term of up to two years and/or a fine of up to $10,000. There has yet to be a prosecution under this section.

I have not even touched on other troubling practices such as: excessively lengthy extensions of time, in some instances, three years, for responding to even simple access requests; political interference by ministers’ and "special" scrutiny and slower treatment for certain categories of access requesters such as journalists and opposition members of Parliament.

HOPE FOR THE FUTURE

Yet, despite this rather dismal record of the two governments in power since the Act came into force, I am the eternal optimist and have hope for the future. When the tenure of Prime Minister Martin began, he expressed an intention to improve the quality of Canada’s democracy, including the transparency of its federal government institutions. He announced his intention to address what he referred to as the "democratic deficit", and used words such as "openness", "transparency", "accountability" and "integrity." Is there reason for my optimism? Will Prime Minister Martin’s government be sufficiently self-confident, courageous and honest to beat the secrecy addiction to which previous governments, despite their good intentions, have fallen victim?

Early signs are encouraging. The Martin government has announced a policy of proactive disclosure of the travel and hospitality expenses of Ministers, their staff and senior public servants. We have already seen newspaper articles recounting the details of these monthly-updated records on departmental websites. As well, in response to the Auditor General’s report concerning the sponsorship programme, the Martin government has announced that it would study the issue of making Crown Corporations subject to the Access to Information Act. Finally, the most encouraging sign is Mr. Martin’s personal vote in the House of Commons, along with the entirety of his caucus, on second reading, in favour of the private member’s bill, put forward by John Bryden, containing comprehensive amendments to the Act. In fact, the vote in favour of the Bill was unanimous. It remains to be seen what will happen with this bill in committee, or if it will be reintroduced in some form after Parliament dissolves for an election; but this is a good sign that a law which already has the fundamentals right, and which has stood up to many attacks, will be made stronger.

My short shopping list of priorities in this area include such items as:

• making Officers of Parliament, such as me, subject to the Act along with Crown Corporations and federal foundations;
• reforming and strengthening the Access to Information Act whether it be by supporting the current private member’s bill before Parliament or by means of a government bill which builds in recommendations made in 1986 by the then Justice Committee , with the wise guidance of your president, Murray Rankin.
• ending the crisis in records management which grew from fear of openness (i.e. not making records or not keeping them in official files) — a massive undertaking which will be the real test of whether or not the right of access remains vibrant for another 20 years.

As the saying goes: A man’s reach must exceed his grasp, or what’s a heaven for!

Thank you for your kind attention. I will be happy to answer any questions you may have.