Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence, December 5, 2006
OTTAWA, Tuesday, December 5, 2006
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 1:45 p.m. to give consideration to the motion, together with the message from the House of Commons dated November 21, 2006, concerning Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability.
Senator Donald H. Oliver (Chairman) in the chair.
The Chairman: Honourable senators, I would like to call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. Our order of reference today requires us to consider the motion of the Honourable Senator LeBreton in relation to the message from the House of Commons concerning Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. The act is more commonly known as the federal accountability act. An amendment to that motion in the Senate referred the actual message from the House of Commons to our committee as well as a reporting date of December 7, 2006, which is this Thursday.
Let me begin with a little history on this bill. It received first reading in the House of Commons on April 11, 2006 and was passed by that House on June 21. It received first reading in the Senate on June 22 and was referred to this committee on June 27, the day we commenced our hearings. Over several months, the committee heard from over 160 witnesses and spent more than 100 hours studying this bill. In our report presented on October 26, this committee recommended 156 amendments to the bill. Further amendments were made at report stage and at third reading.
With respect to the message from the House of Commons, we must remember that in the message, the amendment numbers refer to the amendments adopted by the Senate at all stages. That is a point that Senator Day has made repeatedly to us. As I have stated in our fourth report, our committee made 156 amendments to Bill C-2. Additional amendments were made to the report at third reading. Therefore, the message from the House of Commons deals with 158 amendments.
In its message, the House of Commons agreed with the Senate amendments numbered 1, 3, 13, 16, 17, 21, 26, 27, 32, 33, 55(e)(i), 63, 64, 66, 67, 70, 72 to79, 81, 82, 84, 86, 87, 91, 93, 95, 97, 99, 10 3 to 106, 111, 112, 114, 117, 122, 124 to 127, 135, 144, 146, 152, 156 and 158. Consequently, honourable senators, these amendments are no longer on the table. They have been agreed to.
The House of Commons rejected amendments 2, 4 to 12, 14, 15, 18 to 20, 22 to 25, 28, 30, 31, 34 to 54, 55(a) to (d), 55(e) (ii) to (viii), 56 to 62, 65, 68, 69, 71, 80, 83, 85, 88 to 90, 92, 94, 96, 100 to 102, 107 to 110, 113, 115, 116, 118 to 121, 123, 128 to 134, 136 to 143, 145, 147 to 151, 154, 155 and 157. Senator LeBreton's motion asks that the Senate do not insist on these amendments.
Finally, the House of Commons agreed with the principles set out in parts of amendments 29, 98 and 153 but proposed revised wording of these amendments. Senator LeBreton's motion asked that the Senate concur in the House of Commons' amendments.
Our task, honourable senators, is to draft and adopt a report that would recommend to the Senate the wording for the message to be sent back to the House of Commons in response to its message of November 21, 2006.
Today we will be hearing from two sets of witnesses in relation to our order of reference.
Tomorrow, we will be considering our report. I would like to briefly outline the framework for these proceedings. Honourable senators, as you know, we are permitted by the rules to go in camera to discuss draft reports, should we believe it is necessary to do so. However, unless I get a contrary view from the committee, I believe that our general discussion tomorrow should be in public.
Pursuant to parliamentary practice and procedure, for each of the amendments we have three options. We can accept the proposal made by the House of Commons, we can reject it by insisting upon the Senate's original amendment, or we can put forth the same alternative wording to address our concerns with respect to a given section.
Since we must report to the chamber by Thursday of this week, I suggest that we be prepared to finalize our decisions tomorrow so that the staff can proceed with drafting a report that evening. Thus, when we gather tomorrow, we should proceed without delay on the discussion of the substantive issues. We will have the option of speaking to each amendment separately, or to groupings of amendments on the same topic. We can then meet on Thursday morning to adopt the draft report.
Honourable senators, I also suggest that for tomorrow, since we have a number of senators interested in taking part in the discussion, that on the first round, at least, we limit our comments to five minutes. In that way, we can give everyone an opportunity. We are familiar with these issues, and we have debated them at great length, and we are here not so much with respect to the substance of these issues but with respect to the reply we received from the other place.
Honourable senators, I would now like to call upon the officials from the Canadian Wheat Board. We have before us Mr. Ken Ritter, the Chair of the Board of Directors, and Mr. Jim McLandress, General Counsel.
Honourable senators will know that the Canadian Wheat Board is a farmer-controlled organization that markets wheat and barley grown by Western Canadian producers. It is based in Winnipeg, Manitoba. It is the largest single seller of wheat and barley in the world, holding more than 20 per cent of the international market.
Ken Ritter, Chair of the Board of Directors, Canadian Wheat Board: Thank you, Mr. Chairman. As you mentioned, my colleague Jim McLandress is the general counsel to the Canadian Wheat Board. My name is Ken Ritter; I am chairman of the Canadian Wheat Board's board of directors. I farm in the Kindersley area of Western Saskatchewan and in my third term as an elected representative of farmers in my district.
On September 20, the Canadian Wheat Board appeared before this same committee to request that it be removed from the list of entities designated as ``other government institutions'' that are subject to the Access to Information Act. Our argument then, as it is now, was that the CWB is not a government agency, that it already has an information policy and that adding it to this list would only add unnecessary cost to the Canadian Wheat Board's operations, costs which farmers bear in whole.
Barring outright removal, we requested at the time that the Canadian Wheat Board at least be provided the same kind of protection that is afforded to four other organizations listed in proposed section 18.1(1) of the Access to Information Act, namely, Canada Post, Export Development Canada, the Public Sector Pension Investment Board, and VIA Rail.
The Canadian Wheat Board wishes to extend its gratitude to the Standing Senate Committee on Legal and Constitutional Affairs for having proposed amendments to the Access to Information Act that addressed our concerns. It was our hope that the amended bill would pass in the House of Commons and that we would be finished with this issue; unfortunately, that was not the case. The House of Commons has put the Canadian Wheat Board back on the list of other government institutions, and it finds itself today in much the same position, as it was when I spoke to you in September. While we are still of the opinion that the CWB should not be subject to the Access to Information Act, we realize that there are political realities. If these realities are there, we believe that at this point the proposed legislation should be amended to grant the CWB the extra protection to which I earlier referred. Like the Canadian Wheat Board, VIA Rail Incorporated, Export Development Canada, the Public Sector Pension Investment Board and Canada Post, we are all engaged in extensive commercial activities where the disclosure or possible disclosure of commercially sensitive information could put the organization at a commercial disadvantage.
However, the proposed section 18.1(1) will give these entities additional protections for sensitive information. Specifically, where the information contains trade secrets or financial, commercial, scientific or technical information, the entity only has to establish that it has consistently treated that information as confidential. It will not have to establish that the information has or may have substantial value. That is important, since despite the fact that the information in question may clearly be commercially sensitive, it may well be impossible to establish to the standards required by the ATIA that the information has substantial value in its own right.
The Canadian Wheat Board is in a similar situation. It deals with hundreds of commercially sensitive transactions each day. Viewed in isolation, the information related to any one of these translations may or may not be considered to be of substantive value. Collectively, however, the information could put at risk the Canadian Wheat Board's ability to act effectively on farmers' behalf. Therefore, if it has to be made subject to Access to Information Act, the Canadian Wheat Board asks that it be added to the list of organizations currently protected under proposed section 18.1(1).
It should also be noted that a similar request was made to the Minister of Agriculture and Agri-food in a letter dated September 19, 2006. The letter was copied to the President of the Treasury Board.
I wish to again thank the members of the committee for the attention you have given this issue. It is my sincere hope that the request that the CWB is making here today will not only garner your support and that of the Senate as a whole, but also yield a bill that can successfully pass through the House of Commons.
Senator Baker: I would like to welcome our witnesses, especially Mr. McLandress. One of his first reported cases concerned the rules of the road 15 years ago in a case before the Manitoba Court of Queen's Bench. One might say he is still fighting for the right rules of the road.
As the chair pointed out, the Canadian Wheat Board is a farmer-controlled marketing organization. The CWB is recognized in various judgments of the Competition Tribunal hearings of which you have been a part, having had to fight to become a part in some cases. In a recent case, it was stated, ``All the sales revenue earned by the CWB, after deducting operating costs, is returned to approximately 70,000 producers of CWB grains.''
Mr. McLandress, why is it be so difficult to convince people that you are not and have not been for quite some time a government agency, that you are in a highly competitive market and that you continually have to display that before tribunals and in discussions with the Competition Bureau? Why is it so difficult for some people to understand that you are not a government agency?
Jim McLandress, General Counsel, Canadian Wheat Board: Thank you for your comments Senator Baker.
It is always difficult to speak for others. As you said, the Canadian Wheat Board has regularly been involved with entities such as the Competition Bureau and the Canadian Transportation Agency. It requires a lot of explanation up front, so you will see that type of language repeated quite regularly. The Agricore United merger presented our first need to go to the Competition Bureau. Under the rules, we have to intervene, which means we need to explain who we are and what we do. I cannot speak for the Canadian Transportation Agency, but that is an entity with which we have a longer history and an entity that is familiar with what we are and it has a better sense our role.
The bigger problem, in some ways, is not convincing these agencies that we are not a government agency. It is clear in the legislation that we are not, but we are still fighting that battle in Ottawa.
Senator Baker: I understand that you were granted intervenor status, the right to cross-examine and so on.
Mr. McLandress: In the Competition Bureau proceedings we had intervenor status. There have been various proceedings before the bureau. We worked very closely with the tribunal and have been heavily involved in that exercise, which is still ongoing.
Senator Baker: You have always been very successful, with reported cases anyway, as far as the courts are concerned.
Mr. McLandress: We have not lost yet.
Senator Baker: You have addressed the question in a general sense, but why do you think the Government of Canada and the House of Commons still believe that the CWB is a government agency? Do you have any legal words of advice for the people in the other place?
Mr. McLandress: I would say read the act. At the risk of sounding flippant, it is clear to me. The legislation is clear; the law is clear. I cannot explain the politics of why that debate is taking place, but it clearly is taking place. I am not the one to speak to the politics of it; Mr. Ritter is probably better positioned to explain the politics involved in the debate. However, from a purely legal perspective, to me there is no question: We are not an agency of the Government of Canada. We are not an arm of the government; we are not there to institute government policy. That is a matter of law.
Senator Milne: It seems to me that lately the government is deliberately attempting to undermine the Canadian Wheat Board. How many of your 15 board members have been replaced recently?
Mr. Ritter: The term of Lynne Pearson, a director, ran out in June, so a replacement was made two or three months later. Another director from Calgary resigned; she has now been replaced. A third director was given a letter on November 29 similar to the one our CEO received, which basically asked for a reply.
Senator Milne: The letter asked for a reply to what question?
Mr. Ritter: A reply as to why his Order-in-Council appointment should not be rescinded.
Mr. McLandress: That position has not yet been filled. We are one director shy.
Senator Milne: You are one director short at this point, but two of the three government appointees have been replaced recently.
The Wheat Board is in Bill C-2; board members are being replaced. The voters' list has been, in my opinion, skewed by taking approximately 16,000 voters off of it. The CEO has received a letter saying that he is about to be fired.
I have great problems with including you, I believe illegally, in Bill C-2. In my opinion, it is a further attempt to undermine the effectiveness of the Canadian Wheat Board.
Has anything else happened to undermine your effectiveness? Have you been gagged? Are you allowed to say what you want to here today?
Mr. Ritter: I just want to clarify one thing, senator. All the positions have been filled. Glen Findlay from the province of Manitoba was the last to be appointed. Bruce Johnson was appointed from the province of Saskatchewan and Ken Motiuk was appointed from the province of Alberta. Those are the three most recent appointments.
It is no secret that we have asked for a judicial review of the minister's Order-in-Council directive. It has been commonly referred to in the press as a partial gag order. We feel that is justified.
Our legislation sets out that the board of directors can manage and control the organization; that is very clear. Another section relates to the directive powers of the minister. It is only reasonable and fair, when there is a gap in understanding where powers begin and end, that you would ask the court to adjudicate. It is something that the government sees every day.
Mr. McLandress: That is entirely correct. It was no easy step to file a challenge against the Government of Canada under the circumstances. It is not a decision taken lightly. It has reached a point where it is interfering with our ability to do our job.
It is a $4-billion to $6-billion corporation, a major marketing organization, and we need some certainty. As Mr. Ritter says, we need to have the lines drawn with clarity.
Senator Milne: How many members of your board are appointed by the government? I thought it was three.
Mr. McLandress: There are four direct Governor-in-Council appointees. The fifth, the president and CEO, is a government appointee. That appointment is made in consultation with the board and only after the board has fixed remuneration. In that sense, it is the classic trade-off of the king controls the decision but the Parliament controls the purse. It is a forced cooperation.
Senator Milne: To your knowledge, since the Wheat Board was formed, has any other government in Canadian history attempted to gag its members?
Mr. McLandress: Certainly not to my knowledge, but bear in mind, up until the end of 1998, government-appointed commissioners operated it, in effect, all direct government appointees. It shifted to farmer control as a result of the governance changes that came into effect January 1, 1999. Certainly since then no such effort has been made.
Senator Milne: Does that act specifically say that you are not an arm of government, that you are not a government body?
Mr. McLandress: It expressly says we are not an agent of the Crown, nor are we a Crown corporation.
Senator Milne: Thank you.
Senator Hays: I think we need to get into the politics of this matter in order to understand this situation more fully. It is clear that the government of the day is committed to changing the board and to taking away its single-desk selling function. That was a commitment during the election. One would expect that would be done in the normal course by a producer plebiscite, which is provided for in the legislation. It could also be done by introducing legislation into Parliament, which would then have to be proceeded with through first and second committee and third reading of a bill. That would give ample opportunity for input through parliamentarians. The producer plebiscite would give the producers an opportunity to be engaged. I suppose another way that might happen would be 10 of the 15 elected board members, in whom I think great weight should be placed, may well reflect producer views on the evolution of the board.
What we have happening is an attempt to achieve their purpose through something totally outside of that, which is surprising to me, and that is attempting to destroy the viability of the board. I am not sure I am right on that. I would like your comment.
By changing the appointed directors and the chief executive officer, this will have a great deal to do with the integrity of the board and the continuity of what the board has been doing. Creating an exposure to competitors and getting information that would reduce the competitive position of the board will undermine its ability to serve its producers.
As to the politics of it, it seems to me the government has chosen the worst of all possible ways to proceed. The people who will pay for this, the people who will be really hurt by using this process to achieve their purposes, are the producers whom the board serves. By being less competitive, by having disarray at the level of the chief executive officer, and within the board, this is like a poison pill. The people who will suffer from the consequences of the poison pill are the people who will get less money for the board grains. Am I right in my conclusion?
Mr. Ritter: Senator Hays, you would make a great newspaper reporter. You ask these easy questions.
Let me answer in this way, senator: At the Wheat Board, we do not feel that we should be embroiled in national politics. There is an arena for changes to be made to the CWB Act, and that is the House of Commons. We have a piece of legislation that sets out how those changes can be made. As directors, we are following the legislation, as it is presently constituted. I am one of the 10 directors. We run for elections in our district. The farmers elect us or not. Farmers are aware of what everybody's policy position is and how they act. Over nearly eight years, we have made a number of changes to the way things are done at the CWB. We respond to farmers' wishes. If we do not, we get unelected pretty darned fast.
All I can say is this, senator: We do not need what is happening right now. At the end of the day, the head of an organization, the administrative side of an organization, is the president and CEO. Naturally, when a letter like this arrives, it causes angst within management and staff.
We would call upon the minister to reconsider his apparent intention and allow the board of directors to select Mr. Measner. The board of directors evaluates him each and every year to determine whether he is meeting, not only the rule of law under the act, but also the strategic direction laid out for him by the board. We would call for that to occur.
All I can say is we do not want to be a political football. We feel that we have a different process that is clearly laid out in our legislation as to how we are to act and function. We do not want to enter the parliamentary arena, because we do not belong there and it is not right that we should be there.
Senator Hays: You seem to be here and there. The paper ``The Canadian Wheat Board in an Open Market: The Impact of Removing the Single-desk Selling Powers'' is a result of a task force effort commission by the government minister. Professor Murray Fulton wrote it from the University of Saskatchewan. It states:
The purpose of this paper is to explore the impact of removing the single desk selling powers of the Canadian Wheat Board. The main conclusion of the paper is that it will be very difficult, if not impossible, for the CWB to survive as an organization. Thus, contrary to what the recent task force report indicates, the most likely impact of removing the single-desk selling powers is that the board will cease to exist.
Do you agree with that?
Mr. Ritter: Certainly, the board looked at the task force work and its view was that this was a piece of work that would not result in the board having any commercial strength; it would be seriously downgraded. I have made this statement in the press that if you took this kind of a business outline to the bank and asked for a substantial loan to become a world-class player in the grain business, the bank would laugh you out the door. I noted with interest that Minister Strahl has not embraced the report. He indicated that was only advice to him and I would hope that is where it would all end.
Senator Hays: If the board, as it is currently structured, did not have its single-desk selling advantage on wheat and barley, could it evolve, without more, into something that would be a viable operation serving as an alternative marketing vehicle for producers? Would you require capitalization or a different structure?
Mr. Ritter: I am concerned about answering that question because it could potentially be in breach of the Order-in- Council.
Senator Hays: I will conclude with a comment on the viability of your current structure and its morale in terms of the government's decision to make the changes that I have read. Perhaps, I have misread the news reports, correct me if I have. The reports have as their sole purpose the objective of taking steps that will take the single-desk selling function away from the board and put into question its viability. The consequence will back up into the various accounts that you clear every year with advance payments or not, and under contract or not. I comment on this issue of access to information, where a competitor, by whatever means, can get special information that those accounts will produce less return for the producers who use the board and until such time as a single-desk selling function is in, have to use the board.
Mr. McLandress: Being mindful of Mr. Ritter's concern, I can give you my opinion on this matter. I have been close to all the recent trade cases and been involved in the competition proceedings, so I have a fair, factual understanding of what is going on. I can give you my opinion and I can give you what I think is simple factual information. By doing that I think we can avoid any concerns about the directive.
If I understand your question, your concern is the viability of the proposal out of the task force report, what happens in the absence of the single desk. It is my view that if you take away the single desk and move down the path proposed by the task force report, the best you will end up with is a very small grain company. Leaving aside Mr. Ritter's valid point of a bank's lack of interest when asking for a loan, it begs the question: Does Western Canada need another very small grain company.
Considering the global situation, the Boston Consulting Group came out with a study that four companies controlled 73 per cent of the world's grain trade. That is up 5 per cent from a number of years before the study. Those four companies, or certainly a significant subset of them, have recently commented on the potential demise of the Australian Wheat Board and not surprisingly, they are in favour of it.
Unless we are magically immune from global trade forces, I see no reason why those same four basic players would not consume the Western Canadian grain industry. That would just make simple economic sense.
Then you are asking a very small grain company, this new CWB, to attempt to exist in that environment. Again, in my opinion, this makes no sense. Frankly, it is preposterous. It will not survive; it cannot add value.
Senator Day: Gentlemen, thank you for being here. Just for the record I would like you to go back over the history of how all of this came about because I think this would be helpful for us to understand. You appeared before this committee previously, and I asked if you had you appeared in the House of Commons prior to the bill coming here. Could you tell us if you had and if not, why not?
Mr. McLandress: We were not in the original version of this bill as originally drafted and introduced into the House. The CWB was not caught by it. Needless to say, we followed it but did not pay much attention beyond that. Then at some point in the House we were introduced, by way of an amendment, and that put us into it. Again, that was without consultation, we ended up here. That ultimately led us to our September 20 appearance before this Senate committee, and then back down to the House. It was reintroduced and to the best of my knowledge, without consultation; just added in. I am not sure who introduced it this time.
Senator Day: Do you know who introduced it the first time?
Mr. McLandress: I believe it was Mr. Pat Martin, NDP, from Winnipeg.
Senator Day: Did Mr. Martin consult with you before he proposed an amendment to the original federal government Bill C-2 to include the Canadian Wheat Board?
Mr. McLandress: Not to the best of my knowledge.
Senator Day: Have you had any consultation with the NDP, who proposed this amendment, or Mr. Martin or the government who has maintained the inclusion of the Canadian Wheat Board in Bill C-2?
Mr. McLandress: Certainly since that time, yes, there have been discussions. I have not read the transcript, but I gather Mr. Martin was in the House and opposed the inclusion; having reviewed it in more detail he spoke against the inclusion.
Senator Day: His inclusion?
Mr. McLandress: Yes. This is after we had come back from the Senate, down to the House.
Senator Day: I think we understand what happened. He put it in, we tried to take it out for you, — ``we'' being the Senate — it went back to the House of Commons and it is back here with us, and you are still in the proposed legislation. You know we are sympathetic to the points that you make.
If you look at pages 126 and 127 of Bill C-2, you can see that quite a few different foundations and federal government institutions have been added to the Access to Information Act. If you thumb back through to that section you mentioned, the new proposed section 18.1 is one of them. Virtually all of the institutions that have been added have some provisos in there depending on what type of business they are involved in. There is nothing for you.
Mr. McLandress: Correct.
Senator Day: An amendment proposes that in the event of a change to the corporation's mandate, the minister shall review the appropriateness of the corporation's inclusion in section 1.
Mr. McLandress: Correct.
Senator Day: That does not warm you up a lot; that does not help you?
Mr. Ritter: Not a whole bunch.
Mr. McLandress: I am not feeling particularly warm at the moment.
Senator Day: There is also a provision in this act that says that sometime in the future the government will let us know the rules for adding entities into Schedule 1 as other government institutions. However, we are not provided with that so we cannot apply that test to your organization.
Mr. McLandress: Correct.
Senator Day: That is another difficulty we have. We agree with you that you do not fit into the normal concept of another government institution. That terminology appears here, ``other government institutions''
You say you are not an agent of the Crown, and we understand that. That is a test we would apply. You are formed under a stand-alone piece of legislation that is the Revised Statutes of Canada, chapter C-12, a federal government piece of legislation that creates the Canadian Wheat Board Act, and therefore the Canadian Wheat Board; is that correct?
Mr. McLandress: Correct.
Senator Day: Has there been any discussion about amending this act to change it such that you would be deemed to be a government institution, and that you would be subject to the access to information legislation?
Mr. McLandress: No, the only related change proposed is the consequential amendment to which you just referred that would propose amending the Canadian Wheat Board Act. In the event that the Canadian Wheat Board's mandate changes, the government will reconsider the appropriateness. That is the only proposed related amendment.
Senator Day: Your board of directors has been told that each of them should not exercise their responsibility to manage, advocate and support the board and the institution that they have taken a responsibility in relation to, is that correct?
Mr. McLandress: The specific language of the directive, without quoting it verbatim, is to the effect that the CWB is not to expend funds, directly or indirectly, for the purpose of advocating the retention of monopoly powers. The difficulty is the way that it appears to be interpreted by the minister and staff. Because of the nature of our organization, everything we do really is indirectly commenting on the single desk — it is the core of what we are. In effect, it means we cannot communicate because the corporation obviously does not communicate itself; it has people do it and it pays those people.
Senator Day: Explain to me, how did the members of the board of directors receive that directive?
Mr. McLandress: The directive was received at the corporation late Friday afternoon of the Thanksgiving long weekend.
Senator Day: From whom?
Mr. McLandress: The minister's chief of staff.
Mr. Ritter: It was directed to me, as chair of the board, to implement.
Senator Day: This comes from the minister's chief of staff on a long weekend, telling your board of directors to stop saying anything.
Mr. Ritter: To implement the directive, yes.
Senator Day: Have you had any other follow-up from anyone with a little bit more authority than the minister's chief of staff?
Mr. McLandress: To be fair, what he was doing was merely attaching the Order-in-Council.
Senator Day: So, it is an Order-in-Council that you received?
The Chairman: I would like to interrupt to say there are three people talking at once. If we want to get a transcript to hear what people say, only one person should ask and one person should answer at one time, because I would like to know the answer.
Senator Day: It is such an outrageous thing that everyone was speaking at once, Mr. Chair.
The Chairman: I would like to know the answer. Perhaps, Mr. McLandress, you could give us your answer again because I would like to hear it.
Mr. McLandress: We received the fax on the Friday afternoon. It was a letter attaching the Order-in-Council — sorry, I cannot remember the specific number. The Order-in-Council was dated October 5, signed by the Governor-in- Council.
Senator Day: Are you able to send to our clerk a copy of that Order-in-Council?
Mr. McLandress: Certainly, we can do that.
Senator Day: We will look forward to reviewing that document. I would like to confirm your concerns by being here without having the exception and the protection under the proposed section 18.1 in this Bill C-2. Your concern, as I understand it, is that some of your corporate and commercial information could become available to competitors through access to information request. That could put you and therefore, your farmers at a disadvantage.
Mr. McLandress: Yes, because first and foremost, we are a marketer of grain, as Mr. Ritter said. Hundreds of transactions take place over the phone; we sell millions of tonnes of grain every year. All those transactions involve highly commercially sensitive conversations. How do you tie any bit of information to a specific value? In the collective, yes, and any issues of what our marketing plan is for the coming year, all of those are obviously highly commercially sensitive.
You were talking about the test you might apply; admittedly, you are operating in a vacuum that you do not have the standard by which you will judge whether someone should or should not be in the act. As Mr. Ritter pointed out, farmers pay for the entire organization. The only time government money comes into play is if there is a call on the initial payment guarantee. In that sense, the government plays the role of a banker; it is a guarantor of our initial payment that we make to producers. If there is a shortfall, that guarantee is called on. Obviously, that would generate a lot of government paperwork, all of which would be available already under the Access to Information Act. That is the only government money that ever comes to us and that is exceedingly rare.
Senator Day: My final question is with respect to your proposed alternative. You would rather not be in Bill C-2 at all, in the way the government originally proposed that you were not there. However, now that Mr. Martin has helped to get you into Bill C-2, you are saying that as a fallback, if the Senate cannot get you out of the proposed legislation, you would like to be under section 18.1, which appears at page 119.
I just want to confirm that all of the information that you are concerned about, do you treat that as trade secrets — financial, commercial, scientific or technical information that belongs to your organization and that has consistently been treated as confidential by you?
Mr. McLandress: Yes.
Senator Day: If you were there, you would be satisfied that you would be protected; is that correct?
Mr. McLandress: We would have as much protection as we could reasonably hope to have. We would rather not be there but if we have to be, that seems to be the most logical way to address our concerns.
Senator Day: The other government institutions you will be grouped with are the Canada Post Corporation, Export and Development Canada, the Public Sector Pension Investment Board and VIA Rail Canada.
Mr. McLandress: Correct.
The Chairman: Honourable senators, we are eight minutes over our time and I still have honourable senators on the list who have not had an opportunity to ask their questions. In addition, officials from the Office of the Information Commissioner of Canada, our next witnesses, are here. Do I have your permission to extend this session another 10 minutes to give honourable senators a chance? Is that agreed?
Hon. Senators: Agreed.
Senator Ringuette: I am from New Brunswick, throughout my career I have worked very closely with our farming community. I must say that in Eastern Canada, you are envied because of the good work that you are doing and the fact that you have managed to be of such importance to the farmers in Western Canada. Yes, it is partially because of the quantity, but I must admit that farmers in Eastern Canada are very envious of how the Canadian Wheat Board is structured, and also the success that you have brought to the farming community in Western Canada.
In my view, you are not a monopoly because you do not cover all the grain producers of Canada. You are not a government institution. I was quite surprised that the amendment that our committee has proposed, just as the amendment that we proposed for the National Arts Centre not to be within the Access to Information Act, was not agreed to.
The current minority government in the House of Commons agreed that the National Arts Centre will not be subject to the Access to Information Act because of the donors. I agree with that but it is shallow in comparison to the businesses that the CWB has to deal with. Being susceptible to the Access to Information Act will mean that your corporate files and the data from individual farmers will be open. In my view, that is a breach of business privilege and a breach of rights.
How do you feel that the current government accepts that the National Arts Centre will not be subject to the Access to Information Act, and it is not a government institution? You are not a government institution even though you are profoundly funded by the government.
The CWB is doing a fantastic job, yet the government persists with such destructive measures. How do you feel about that situation?
Mr. Ritter: That is another easy question to answer. On the Prairies, there is a great deal of political passion around the Canadian Wheat Board. We feel that we should not be in Bill C-2. We are in the reconstituted and amended act that was put in place in 1998 and the reality is that the board of directors is charged with the management and control of the organization and, realistically, we should not be part of the proposed legislation. As I said in my opening remarks, if that is not possible then we at least need the protection of section 18.1(1), along with these other quasi- commercial organizations. We are completely commercial but at least allow us that position.
Senator Joyal: I will be quick. I have a very important technical question. You claim that a section of your constituting statute says that you are not an agent of the Crown and you are not a Crown corporation. Could you give the exact wording in that section please?
Mr. McLandress: If you give me a minute, I could give you the word-for-word.
Senator Joyal: The important thing for me is to determine if you are a government institution.
Mr. McLandress: The act says, and this is close to verbatim, that the corporation is not an agency of Her Majesty, nor is it a Crown corporation for the purposes of the Financial Administration Act. That is close to the definition.
Senator Joyal: If I am a private citizen and I seek you in court for a responsibility, will I sue you in the Federal Court within those limits of procedure when citizens sue a government agency or a Crown corporation, or will I go to the common law court in the seat of your headquarters?
Mr. McLandress: You will sue me wherever it is most appropriate.
Senator Joyal: Would it take place in the common law court or in the Federal Court?
Mr. McLandress: For example, if you live in Saskatchewan, you would sue in the Saskatchewan Court of Queen's Bench. There are some elements where it would be appropriate to take it before the Federal Court. It would depend. Certainly, if you are looking at a contractual dispute with us, you would pursue us in whichever provincial court is most convenient to you.
Senator Joyal: Again, as you know well because you are a lawyer, if you seek the Crown in responsibility, there is a specific procedure that you have to follow in terms of giving notice to the Attorney General. If I seek in responsibility a Crown corporation or a Crown agency, I am subjected to a specific legal regime in terms of procedure and the court to which I have to address myself to receive the damages that I seek.
I ask you the same question again: If I seek responsibility, will I seek you under the Federal Court system or will I seek you in responsibility under the common law court where the accident or the damages occurred?
Mr. McLandress: You would pursue the CWB in the regular common law courts. The only area where it would be appropriate to pursue in the Federal Court, and even then not with all of the restrictions you are talking about, is with respect to a decision we might make regarding export licences. We have the ability to issue an export licence and that would be a reviewable decision in the Federal Court. In that case, you would simply proceed under section 18 of the Federal Court Act. That is about the only area. Otherwise, you would pursue the CWB under common law in whichever provincial court makes the most sense for you.
Senator Joyal: This is important because this is one of the determining factors that any court of justice would look to determine whether you are a government body. If you were a government body, a citizen would have to take you to the Federal Court and not to the common law court. That is normal process unless there is a specific exception made in the constituting act. Normally, the common law court would apply to you if you contend that you are not a government institution based on that section of your constituting act that states that you are neither an agency of the Crown nor a Crown corporation for the purpose of the act. By stating this, in your constituting act, it excludes you from the legal regime that applies to a Crown corporation or to a government agency. If you go to court, you should plead that you are not a government agency in terms of understanding your legal status. It is important if we decide not to include you on the same footing as other government institutions listed in the act and yet the government claims that you are a government institution according to the message that we received from the House of Commons. It states clearly that amendments 120, 121 and 123 apply to you as a government institution.
Mr. McLandress: You are entirely correct. There are no special notice provisions. They do not have to notify the Attorney General if they intend to sue the Canadian Wheat Board.
Senator Joyal: The government acts in terms of your operation only as a side guarantor for a specific limit or financial responsibility?
Mr. McLandress: From a financial perspective, yes, there are the appointment provisions that we talked about with respect to the board of directors. There are those links with the government. However, we are not like an institution that you might want to sue and be required to notify the Attorney General first and then complete all the procedural requirements. Those steps are not necessary for someone who wants to sue the CWB.
Senator Joyal: In terms of the application of the principle, the one who pays is the one who calls the tune. Who pays in your case? Is it the farmers?
Mr. McLandress: Yes, that is correct.
Senator Joyal: It is only as a collateral guarantor that the Government of Canada intervenes in your financial operations.
Mr. McLandress: That is correct.
Senator Joyal: The government appoints only one-third of your board membership.
Mr. McLandress: It is slightly less than one third. The government would appoint four out of five and the fifth, the president and CEO, is not an absolute appointment. It is that forced cooperation that we talked about whereby the board, in essence, has to agree to the nominee. The board has to be consulted as to the nominee and the requirements, and has to approve remuneration before the recommendation for the appointment is made. That last position has to be a cooperative exercise.
Senator Joyal: Are there other factors we should be taking into consideration to determine your status?
Mr. McLandress: Between yourself and Senator Day, I think we have covered all of the relevant factors.
The Chairman: Senator Joyal, the Canadian Wheat Board is a fairly hot commodity in Ottawa, and the witnesses have another appointment in another building in nine minutes.
Senator Mitchell: It is clear that the government wants to open the Canadian Wheat Board to competition, while at the same time, insisting that you become subject to the Access to Information Act. This will limit your ability to compete effectively because your competitors will be getting information that will be very helpful to them in competing against you. It may well be that the government does not want to open you to competition; it may be that the government wants to kill you altogether.
Have you heard any suggestion from the government that if it insists on making the CWB subject to the Access to Information Act, it will in turn require that Cargill, ADM, and all your major competitors will be subject to the act as well? That would level the proverbial playing field.
Mr. McLandress: I have not heard that, and I would not want to be the government messenger to deliver that message.
Senator Stratton: This debate is centred on the Access to Information Act. The government contends that you are a commercial operation and any sensitive commercial information would not be released. Who determines whether that information would be released if you come under the Access to Information Act?
Mr. McLandress: It would depend on the way in which that aspect comes into play. If it is left as is, there must be the substantial-value threshold.
Senator Stratton: Who determines that?
Mr. McLandress: The corporation, if you will, would be looking at that. Then it would be subject to an appeal through the privacy regime.
Senator Stratton: Is it primarily the CWB that determines whether or not that information would be released? On appeal, would it then go to the Privacy Commissioner?
Mr. McLandress: That is my understanding.
Senator Stratton: Would you make the first determination?
Mr. McLandress: We would look at it in the first instance, although there are rules limiting how far one can go in terms of claiming confidentiality.
Senator Stratton: I appreciate that; however, in the first instance, you have the say?
Mr. McLandress: Yes.
Senator Stratton: Does it cost, give or take $70 million a year in administrative costs for your operation?
Mr. McLandress: Yes, $60 million to $70 million, ballpark.
Senator Stratton: Do you think farmers should know those numbers?
Mr. McLandress: I would certainly have no qualms about that. Bear in mind that the board already has an information policy in place. Its basic view, since the elected board came in, is that farmers are entitled to the information. We are entirely open with farmers; however, we are not interested in providing our information to everyone else. If farmers request information on expenses and accounting, then that information is available for them. Obviously, we will not provide private information to other people.
Senator Stratton: Under the Access to Information Act, do you control what would be provided to farmers, as well as how much information is provided with respect to the $70 million in administrative costs?
Mr. McLandress: There is a distinct difference, though. With respect to the current regime where the board of directors has its information policy prepared, the focus of it is that farmers should get whatever information we can provide them that is not commercially sensitive. That is appropriate.
Senator Stratton: That is my point.
Mr. McLandress: If you talk about moving us under the access regime, you are no longer limited to providing that information to farmers, who are our stakeholders and the ones to whom we are responsible and accountable, you are now exposing that to any Canadian citizen. Any Canadian citizen can file a request, in fact, one does not have to be a Canadian citizen; a non-Canadian can hire a Canadian citizen to make the request.
Senator Stratton: Could they do that through a farmer, with respect to information relating to the $70 million?
Mr. McLandress: In theory, they could do that through a farmer. However, if a person is a farmer, we will not look behind that request to see their motives.
Senator Stratton: The information would be available through a farmer, right.
Mr. McLandress: Yes.
Senator Stratton: With respect to the plebiscite on barley, can you explain how that process would proceed? Senator Milne alluded to the fact, and you responded, that 16,000 farmers would be excluded. I will go through my understanding of this, and you can correct me if I am wrong.
The 16,000 excluded farmers are those farmers that have not sold product for two years. If there is an exception through sickness or whatever, one could claim they have not been able to grow product beyond a couple of years, here are the reasons why, and they would be added to the list. Is that correct so far?
Mr. McLandress: Just to be clear, the barley plebiscite you are referring to has yet to take place. The rules and processes are separate. The 16,000 voters referred to relates to the just-concluded Canadian Wheat Board directors' election.
Senator Stratton: Essentially, would the same rules likely apply in a plebiscite?
Mr. McLandress: Yes, assuming they do apply in a plebiscite. The most significant difficulty with respect to the 16,000 voters is that process unfolded in the middle of an election. The election period commenced September 1, I believe, and initial voter confirmation lists had gone out and information had already proceeded. Midstream of that process, that happened. That is a key difficulty. Anything can be accommodated and managed with enough lead time.
Senator Stratton: My point is, if you have not grown product for five or ten years and are you still on the list, the question became, should you have the right to vote. That became the issue. Is that not correct?
Mr. McLandress: It is certainly more appropriate for Mr. Ritter to answer that question. The whole issue of how the voters' list is developed and who should be voting has been the subject of an extensive review already, and the Canadian Wheat Board has submitted its comments. Certainly nobody is suggesting what started out as the voters' list is perfect. It would be nice to be, but the reality is otherwise.
Senator Stratton: In Manitoba, there was a single desk for selling pork, and there was a big fight similar to this. The province has an open market on selling pork in Manitoba, and there has not been a peep. It has been highly successful, marketing pork openly rather than through a single desk.
This problem will not go away. You know that, and we said have that before in this room. This problem will not go away. It is like a sore tooth. In the short term, we can deal with these issues and the new government will disagree and the opposition will disagree; that is the job of the government. In the long term, eventually this will be an open market. You can see it coming down the track; as time goes on this will evolve into an open market.
Would you not agree that you can see that happening? You saw the former government taking the position of electing 10 members to the board. That in itself is a first stage in an evolution.
We travelled the country on Bill C-4. I remember Senator Hays was part of that group, and that was the conclusion. This is an evolutionary process. The minister of agriculture at the time said so. It is an evolving process. How would you comment on that?
Mr. Ritter: I would comment on it like this, senator: First of all, concerning the sore tooth analogy, the tooth can be capped quite easily. Quite simply the act sets out that this should be the farmers' decision as to where the mandate goes. It is a very simple process; you have director elections where people can vote and we will hear the results on Sunday evening, or Monday, in half of our districts as to how people actually did vote, so let us hear the results.
Second, there is a plebiscite provision in the act. If the farmers of Western Canada want to change their minds as to what the legislation says, we are not going to stand in their way. However, they have not said that, sir. They have said something exactly different and opposite to what you are saying.
Senator Stratton: I appreciate that. It is funny how the farmers of Ontario and Quebec who sell wheat do not want a wheat board.
Mr. Ritter: Senator, the Ontario farmers made that decision on their own.
Senator Stratton: I appreciate that.
How much money did the Wheat Board receive from the federal government and was it somewhere around $85 million?
Mr. McLandress: There was a deficit a couple of years ago, on unusual circumstances, with respect to adjustment payments in the fall that led to a deficit and a call on the initial payment guarantee I was talking about of around $80 million, $85 million, something like that.
Just for information's sake in the 75-year history of the CWB, there have only been 13 deficits. That is covering all the pools, so that is not just 13 years. In some cases, and usually when there were deficits, they often happened in more than one pool.
Mr. Ritter: May I answer that question? We should understand how these initial and adjustment payments work. The CWB does not just pay out this money. We make representations to the Department of Finance and say this is the data that we see in the marketplace. The guarantor reviewed the data independently and came to the same conclusion.
Senator Stratton: I am not suggesting you are loading the books. That is not the point.
Mr. Ritter: The guarantor came to the same conclusion and the market went south in that particular year, and so that was the result. There was a 13-year gap between the previous amount to this one, so I figured out one day there was something like 180,000 tonnes of grain sold in that intervening time. When that $85 million is applied to that number, it is a small number.
Senator Stratton: If the government was the banker, have you paid the money back to the government?
Senator Mitchell: Who would have covered that if the Wheat Board had not been there? It would have been the farmers, would it not?
Mr. Ritter: Yes.
Senator Stratton: The farmers and the Government of Canada.
The Canadian Wheat Board is listed in the Public Accounts of Canada 2005-06, table 9.4. It is listed under ``Loans, Investments and Advances,'' in the public accounts. It looks like a government institution to me, if it is listed in the public accounts. The government guarantees the farmers. If they go in the hole, the government pays the farmers. The government has four or five members on the board, depending on how you argue the point.
Mr. McLandress: The government used to have guarantees with respect to major aircraft manufacturers in this country. That did not make them the government institutions.
Senator Milne: How is your voters' list made up? When they took the 16,000 members off the list, they took them off because they had not sold grains through the board for the past two years, was it? Was it in 2005-06?
Mr. McLandress: What happens is the CWB creates an initial voters' list based on our producers. The ones who were ultimately determined to be left off the list were those who had not delivered in this crop year or the previous years of 2005-06, 2006-07.
Senator Milne: That means you really do not know whether or not they are delivering this year, so that eliminates one of these years as a valid year to judge on. If I recall correctly, I have been told that 2005 was a very poor year for grains out West, and much of it was not of high enough quality that it could be sold through the Wheat Board. Am I correct?
Mr. McLandress: It was not a good year in certain areas. Certainly there were many difficulties.
Senator Milne: Those 16,000 people, quite probably those farmers were growing grain in those two years but were removed from the board because of those two circumstances?
Mr. McLandress: I cannot speak to that specifically. There certainly were difficulties. There was a process to enable them to come back on. My understanding is that has been taken up. Last I heard 1,000 had taken up out of the 16,000, so it is hard to say.
The Chairman: Mr. Ritter and Mr. McLandress, you have stayed an extra 37 minutes under intense questioning. I thank you very much. We have appreciated your input into this important issue. I am sorry you are late for your next meeting.
Mr. McLandress: Thank you, Mr. Chairman.
The Chairman: Honourable senators, I am pleased to welcome officials from the Office of the Information Commissioner of Canada. The Information Commissioner investigates complaints from people who believe that they have been denied rights under the Access to Information Act, Canada's freedom of information legislation. An independent ombudsman appointed by Parliament, the Information Commissioner has strong investigative powers. He mediates between dissatisfied applicants and government institutions. I am therefore pleased to welcome Alan Leadbeater, Deputy Information Commissioner; Daniel Brunet, Director, Legal Services, Nadine Gendron, Legal Counsel, and J.G.D. Dupuis, Director General, Investigations and Review.
The committee wants to thank you for being here. I will let you now your presentation and we will later have a period of questions and answers, which will be most useful for committee members.
Alan Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner of Canada: Thank you for inviting me to appear before you for the second time to assist in your deliberations on Bill C-2, more specifically in your deliberations on the message received from the House of Commons on November 21, informing senators of the House position on amendments to Bill C-2 adopted by the Senate on November 9.
This exchange of messages between the two chambers of Parliament is unusual. It is an interesting development. It signals the existence of important differences of opinion on matters of policy. The last witness certainly was good evidence of that.
One general area of difference is certainly the sections dealings with the changes to the public's right of access to records held by government institutions. Today, we will give you our best advice as officers of Parliament, independent of government. We will try to steer away from the politics of all this, if possible. We will simply give our views to assist you in ensuring that Bill C-2 will improve rather than diminish the accountability of government through transparency.
On November 6, I provided to this committee an assessment of the amendments to Bill C-2 that this committee proposed and reported to the Senate on October 26. The content of that assessment document, together with the evidence I gave during my appearance on September 20, sets out our views, and I will not repeat them in my opening statement. The documentation I have passed you at tab b is a copy of that assessment.
However, to assist you in navigating through our views, I propose to deal with 15 of the amendments where the House disagrees with the Senate. Of those 15, the Office of the Information Commissioner believes that the Senate's position is preferable in nine instances, the House position in six. The Senate amendments supported by the Office of the Information Commissioner are 92, 113(a), 113(b), 118, 119, 139, 140, 142 and 143.
The Chairman: Which tab should we look to in your book?
Mr. Leadbeater: The statement itself is at tab a, and at tab c is the document or chart that will indicate the particular amendments and our views thereon.
The six Senate amendments not supported by the Office of the Information Commissioner are 115(a), 115(b), 116, 120, 121 and 123.
In one case, we have concerns even though both the House and Senate agree, and I will take your direction at the beginning, Mr. Chairman, that that matter will not be on the table for discussion.
As I mentioned, the chart at tab c shows the provisions of Bill C-2 on which I would like to offer comment, the rationale for each provision offered in the message to the Senate from the House of Commons and the views of the Office of the Information Commissioner where they differ from those offered by the House.
I have also included at tab d some information that will explain why we agree with Senate amendments 139, 140, 142 and 143 concerning whistle-blowing. I am prepared to go through the chart at tab c, or I could let it speak for itself and answer questions. I am in your hands.
The Chairman: Please go through it briefly so we can get the flavour of it.
Mr. Leadbeater: At tab c are contains the provisions where the Office of the Information Commissioner agrees with the Senate.
The Chairman: This is amendment 92 in section 89.
Mr. Leadbeater: Amendment 92, that is correct. The House of Commons disagreed with this amendment because the House was concerned that they would have some technical problems about coming into force. We continue to feel that the drafting of 16.1 as proposed by the Senate is the more rational approach, especially given that all of the institutions will have a coming-into-force period that will be at least one year in duration, as it was when new institutions were added when the act first came into force.
You will notice that there is a coming-into-force provision in the statute that allows the Governor-in-Council to set that. The argument that the drafting you proposed in 16.1 does not work because of coming-into-force issues is a concern that we feel is already taken care of and that the amendment that you propose has an elegance of drafting without repeating the same sections in two places in the statute.
With respect to 113(a), we agree with the amendment proposed by the Senate for the same reason, and I will not repeat the reason. That is 92 and 113(a). Sorry, 113(a) is the House disagrees with the Senate's proposal that all the officers of Parliament will be treated the same. The House of Commons wants two of the officers of Parliament to be given more secrecy than others. We agree with the Senate's version. There is no legitimate basis for giving two of the five institutions, all of which have investigative, audit and/or advisory functions, a broader zone of secrecy.
As I mentioned in my last appearance here, why, for example, should the investigative role of the Auditor General be immune for all time from accountability through transparency?
I am thinking today of the appearance of the Commissioner of the RCMP before a House committee. He presides over an investigative agency that requires a substantial amount of secrecy, but even his investigations at some point merit an inquiry through transparency as circumstances warrant. Surely, we cannot say that the Commissioner of Official Languages and the Auditor General deserve a greater zone of secrecy than even the RCMP.
With respect to proposed amendment 118, the Office of the Information Commissioner agrees with the Senate that audit working papers should become subject to the Access to Information Act after the audits are complete, in the same way as drafts are, subject to other exemptions. I remind you that there are exemptions in the statute to protect commercially-sensitive information, privacy of individual's — whistle-blowers, for example — and advice and recommendations to government. Subject to those other exemptions, I do not think the Auditor General or any other witness has provided you evidence of why it is necessary to keep those secret forever. Justice Gomery rejected that argument.
You will recall that in the sponsorship inquiry the ability of the public to get access to draft audit reports and working papers was instrumental in bringing the situation to light, which eventually led to the Auditor General's review and the subsequent judicial inquiry.
With respect to proposed amendment 119, we agree with the Senate's approach; this is the public interest override. The concern expressed by the House is that this would in effect give the Information Commissioner order powers by the back door, because he could be investigating a complaint about refusal to disclose records, he would then have those records, and someone could apply to the commissioner and the commissioner would decide in the public interest to give that information out.
The Chairman: Could you go to the area where you disagree? I do not think there will be much of a debate on the things with which you agree, but there may be on the things with which you disagree.
Mr. Leadbeater: The section with which we disagree is at page 7. The Senate added the Canada Foundation for Sustainable Development Technology to 18.1(1) as an institution that required a special protection that all information that it has consistently treated as confidential now become an exemption. We argued, as you will recall, against all of those special exemptions, pointing out that there was ample protection in the existing statute, but there was a burden on institutions to demonstrate commercial harm from disclosure. We have maintained that same concern with respect to the Canada Foundation for Sustainable Development Technology.
Proposed amendment 116 is on the same issue, the head of the Canada Foundation for Sustainable Development Technology. It imposes a mandatory exemption class forever. As we argued before, there is no justification to keep anything secret forever and in all circumstances. We agree with the House that that is an overly broad exemption for secrecy.
I would like to remind you that it is not because we think the information should be disclosed. We think that the information is legitimately protected under existing sections of the statute, but the burden is on the institution to demonstrate that it meets the test. These tests that are forever with no burden mandatory do not meet the public policy objective of accountability.
The Chairman: Could you please move to page 10, proposed amendment 121?
Senator Milne: Let's go through these one at a time.
The Chairman: All right.
Mr. Leadbeater: I am in your hands, Mr. Chairman. Where would you like me to proceed?
Senator Milne: Amendment 120.
Mr. Leadbeater: We disagree with the Senate on amendment 120. I believe the Senate argued that there should not be a retroactive effect to the statute and, therefore, information that was created or came into being before the statute is passed should not be subject to the right of access.
First, it is technically incorrect to say that is a retroactive effect. A retroactive effect would be that institutions would have to answer access requests made before the statute came into force. This amendment is simply saying that as of the date the statute comes into force all records held are subject. That is the approach that was taken with all institutions when the act came into force and it is the approach taken with all the Crown corporations you have added to the statute. Saying that foundations and officers of Parliament would have special treatment, that all records they created prior to this would not be subject to the right of access is not consistent with the policy of improving accountability of government institutions. It raises the spectre of why all information created by the foundations since they came into being would suddenly be off the table for public scrutiny unless it was created after the date this act came into force.
Amendment 121 concerns the Wheat Board. The commission disagrees with the Senate amendment. The Canadian Wheat Board has a national mandate and significant impact on Canadians and the Canadian economy. It has $6 billion of Canadian-guaranteed borrowings. Five members of its board of directors are appointed by the Government of Canada. We repeatedly receive calls from the public asking why they cannot get information the administration of the Canadian Wheat Board.
I remind you that it is not because we think sensitive information held by the Wheat Board should be disclosed, and it would not be. There are vibrant exemptions in the statute that protect that disclosure. We have fish marketing boards and port authorities that are already covered. The Canadian Grain Commission and the Canadian Dairy Commission are already covered. Governments choose various modes of carrying out public interest functions in areas of their jurisdiction. The point of this accountability bill was to sweep back in institutions in different guises that are carrying out public functions but are not under traditional departmental structures.
The Wheat Board admits it has a duty of transparency to the public. It has its own access to information policy, which you can see on its website. For all of the information it says it must keep secret there are exemptions in the Access to Information Act. Yet, you will also see in its access to information provisions that it demands to know the reason any access requester wants information. That is entirely contrary to the scheme of transparency through openness that is at the heart of the policy of the access to information regime.
The argument, why do we need coverage under access to information if we already have a policy, it is a policy that operates by grace and favour of the Canadian Wheat Board. It is not a policy as a right.
With respect to amendment 123, the Office of the Information Commissioner of Canada disagrees with this Senate amendment for the same reason. That is simply the provision that allows review at the time of a change of mandate. It would make sense if there is a change of mandate.
The Chairman: Amendment 117 deals with the National Arts Centre.
Mr. Leadbeater: We are disagreeing with both the House of Commons and the Senate. I take it you do not want representations on that provision. Am I correct?
Senator Day: The House of Commons has accepted that amendment.
Mr. Leadbeater: If I could go to one or two that are of particular interest to us.
The Chairman: Can you give us the page and a section number?
Mr. Leadbeater: Yes. I would like to refer you to page 3, amendment 139, 140, 142 and 143. These are all relating to whistle-blowing.
You will recall you had evidence from the Public Service Integrity Officer in the first round. He argued that too much secrecy was being imposed on the whistle-blowing environment under Bill C-2. As a result of that, you proposed an amendment whereby only such secrecy as necessary to protect the identities of whistle-blowers, and those who cooperate in investigations, should be protected. The House did not support that amendment.
I am urging you to stick to your guns on this. To help you understand why I am puzzled by what the House is doing is why I have information in tab d for your reference.
I have two statements made by the parliamentary secretary to the sponsoring minister that can help you understand what the minister intended for these whistle-blowing sections. The first is a transcript from the May 10 appearance before the legislative committee on Bill C-2. If you look at the sidebar provisions at pages 7 and 12, you will see that Mr. Poilievre is talking about this issue of how much secrecy is required under the whistle-blowing statute.
I will just read the provision at page 7. It states:
On the issue of access to information, we should clarify that no documents whatsoever will be exempt from access to information under this bill. All documents, every single document related to a prospective scandal, are accessible to the department. So you can make your ATI request to the department, just as you would have been able to without the presence of this bill. We have removed all exemptions that existed under the previous Bill C- 11. Exemptions only exist for the commissioner's office during an investigation so that the investigation is not interrupted by constant ATIs and so the identities of the whistle-blowers are essentially protected in order to defend against reprisals.
On page 12 Mr. Poilievre is speaking again. The Mr. Cutler he is referring to is the whistle-blower in the sponsorship scandal. He states:
Thank you, Mr. Cutler, for all the work you and whistle-blowers like Joanna have done for the cause over the years.
On the issue of the Access to Information Act, Mr. Martin has raised this issue, comparing it to clause 55 of Bill C-11.
You will recall that clause 55 maintains secrecy for five years over whistle-blowing information.
Clause 55 would have allowed departments to conceal any information related to a disclosure for many, many years. The section we have replaced it with removes that exemption altogether. All information related to a disclosure, all of it, is perfectly accessible under ATI if the Accountability Act is passed, with the sole exception of the disclosure itself — that is to say, what the whistle-blower created and gave over to the commissioner. So there are no new exemptions whatsoever in the Accountability Act for the government or any of its institutions.
I already see the stress the level you're under diminishing and you're looking more relaxed now you've learned that, because that is a very important point and I'm glad you have made it.
Additionally, as it relates to the commissioner himself, the commissioner may refuse ATIs on his investigation. But those are the same exemptions that exist for any investigatory body. All sorts of other bodies that conduct investigations have exactly the same exemptions. So there are no new exemptions in the Accountability Act.
I wanted to put your mind at ease, because I know Mr. Martin's question would have caused you considerable distress. So are you happy to see that clause 55 of the previous Liberal bill has been removed entirely?
Mr. Cutler says:
If clause 55 is gone and the information is more open, I'm quite happy.
We know clause 55 is not gone. Clause 55 is strengthened.
I am puzzled by what it is that the government thinks it is accomplishing by this provision. I think the Senate got it right. The words we are hearing from the minister's parliamentary secretary are interpreted well in the Senate's amendment. They are not interpreted well in the House proposal.
If you look in the same tab, the next document, I have a speech there that Mr. Poilievre gave on November 21, just two weeks ago. On page 11, there is a sidebar portion. Speaking of Bill C-2, he states:
Finally, the bill erases two cover-up clauses contained in the previous Liberal bill — and this is what I wanted to talk to you about with respect to privacy.
There was a clause in the previous bill, passed by the last Parliament, [Bill] C-11, which would have caused information related to a disclosure by a whistleblower to be kept secret for up to five years. The goal was ostensibly to keep the identity of the whistleblower confidential.
We did not believe, nor did the public sector unions or the whistle-blowers who testified before a committee, that in most cases confidentiality would be a likelihood anyway. Furthermore, we believe that the public deserves to know about information related to a disclosure.
So what our bill does is, it creates an exclusion under Access to Information for the disclosure itself. Those are the words written in the disclosure by the whistleblower. That cannot be accessed by ATI. But all documents related to that disclosure and in evidence that demonstrates its truth or falsehood, all of that information will be accessible under Access to Information. That is the balance that we sought to strike and, generally speaking, we have had support from whistleblowers in so doing.
If you want to compare the words, look in that same tab at the last section. I have reproduced the side-by-side of Bill C-11, which is the previous part of the Public Service Disclosure Act. It is amended by Bill C-2.
I will ask you to look at page two of Section 55. This is what the bill now says will be protected. 16.5 states:
The head of a government institution shall refuse to disclose any record requested under this Act that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure . . .
You will see that this makes it mandatory forever, no time limit, to protect all information created for the purpose of making a disclosure or created in the course of an investigation into a disclosure.
That is far broader than those statements I have read to you. Those statements I have read to you I think capture what you heard from the integrity commissioner and whistle-blowers, what they want is their identities protected. That is what your amendment does.
We strongly support your amendment; it is critical to ongoing accountability and transparency with respect to wrongdoings in government.
Senator Milne: Which amendment number is this?
Mr. Leadbeater: If you look at tab c, page 3, it is amendments 139, 140, 142, and 143.
Senator Day: For clarification, Mr. Chairman, amendments 139, 142, 143, all relate to the issue concerning Mr. Poilievre, in the House of Commons. Mr. Poilievre the parliamentary secretary of the minister responsible for this bill was speaking, exaggerated and, I do not want to say ``purposely misled,'' because I do not know if he was purposeful or not, said that certain things were being accomplished that were not. All of these sections relate to that comment; is that correct?
Mr. Leadbeater: That is correct.
Senator Day: Thank you. I will have a chance to look at it later but I appreciate your bringing that to our attention.
Mr. Leadbeater: I had begun a few comments about the public interest override and I am not sure if I finished them.
In reference to amendment 119, there is a statutory scheme in the Access to Information Act as to how the commissioner conducts himself with respect to complaints. If the commissioner believes that a government is overly secretive and that information should be released and if the government institution does not agree, he has the right to go to the Federal Court and the Federal Court will order disclosure.
I do not believe that the concern raised by the House that the commissioner would nevertheless invoke the public interest override and disclose without following the procedure in his statute is realistic. I do not think it could ever be in the public interest for the Information Commissioner to go against the scheme of his own statute and disclose information without going to the Federal Court. For that reason, we do not support the rationale of the House of Commons with respect to the public interest override.
Senator Milne: Mr. Leadbeater has pretty well answered all my questions. I was so busy following what he was saying that I did not have a chance to look at my concerns.
One of the big issues is the fact that you do not agree with our amendment on the Canadian Wheat Board. Were you here when the gentlemen were here from the Canadian Wheat Board?
Mr. Leadbeater: Yes.
Senator Milne: Why are they wrong and are they wrong, because I do not believe they are wrong.
Mr. Leadbeater: This issue of what is a government institution, for the purposes of the Access to Information Act, is the whole problem. I do not think there is any set of criterion. We proposed that a set of criterion should be included in the bill and that it should not be left to the government to make the decision. There would be factors like powers of appointment to the board, funding and whether or not the subject matter of the activity of the institution was a matter within federal jurisdiction that affects the public interest with respect to the public health, public safety or the conduct of the economy.
The Canadian Wheat Board, whether it would fall within the definition of a government institution or not depends on the definition of a government institution. It would fall within the definition that we propose.
Governments have a tendency to take public functions and put them into all types of different delivery vehicles. At one time the functions of the Canadian Wheat Board were much closer to the government, then it would move farther away. It did not change the function. Governments remove functions from themselves for many reasons because arm's length is in the public interest and some are simply for political cover.
For example, for many years in this country the air traffic control system was run by the Department of Transport, and all of its activities were subject to access to information. Then the government moved it out into another delivery vehicle, NAV CANADA, a private firm. It did not change the fact that it is a monopoly activity in an area of public safety. It is of concern to the Canadian public, and a definition of government institution might need to be broad enough to bring that in. We have a similar situation with the Canadian Blood Services.
When you look down the list of several hundred institutions that are covered by the Access to Information Act, many of them are not traditional government institutions but they play important functions in Canadian society that are in areas of federal jurisdiction that demand accountability through transparency. That is the issue, I think. It is not whether or not they are responsible to a minister. We are not responsible to a minister, but it is the will of the House that we be made subject to access to information. There is a similar situation with the Canadian Radio-Television and Telecommunications Commission.
It is a long-winded answer but that is why we feel the Canadian Wheat Board is properly within the coverage of the statute.
Senator Milne: Would not it be better therefore then to leave Bill C-2 as it was originally written, not including the Canadian Wheat Board? That is the way it was originally written and it was stuck in there clause-by-clause by an NDP member of the House of Commons. Now that NDP member has apparently seen the light and is thinking that it should not be in there, but the government will not take it out.
I understand that there is a committee charged with review of these issues in the other place and maybe it would be better to leave it out as it was originally intended and then let this committee deal with it in due course.
Mr. Leadbeater: That is a legitimate position to take. I believe that it is unfortunate that the whole package of access to information reform is not being dealt with as a whole. I agree with little bits of pieces here versus what will be done in the other place.
I simply would like to say that the political issue of single desk and whether it should persist is severable entirely from this issue of subject to the Access to Information Act. The idea that becoming subject to the Access to Information Act undermines the ability of a commercial entity to function is not correct. There are many that function under the Access to Information Act; the Mint, for example.
Carefully crafted exemptions to protect this information are in the statute. All of the major regulated businesses in this country provide their sensitive data to the regulators; it is all protectable under the hands of the regulators under the statute. I know the concern expressed by the representatives of the Canadian Wheat Board had, at their foundation, a belief that becoming subject to access rendered them incapable of effectively carrying out their mandate. I am here to tell you that is absolutely wrong.
Senator Milne: You quote the Mint as an example, and the Mint is not exactly in direct competition with large American firms.
Mr. Leadbeater: It is certainly in great competition with other firms of the same business throughout the world.
Senator Milne: Yes, but they are not selling exactly the same product, because no one else is selling Canadian coins.
Mr. Leadbeater: Other firms in the world would be happy to make Canadian coins. If the Mint did not come up with an effective bid they would be happy to make them for us. Other marketing boards, freshwater fish marketing, are already covered by the statute. You are proposing to put Atomic Energy of Canada Limited into the statute. That is a competitive business. It will be subject to the statute.
Senator Cowan: Just to follow along on what you said a moment ago, I would take it that for that reason — we are looking here at page 7, the reference to Canada Post, Export Development, Public Sector Pension Investment Board and VIA Rail — it is your position that they do not need to have this sort of blanket exemption, and that they would be adequately covered by the existing exemptions in the Access to Information Act.
Mr. Leadbeater: Exactly, because if you read that exemption, what you are saying is these institutions can from now and ever more keep secret what they have always kept secret. Therefore, why make them subject to access?
Senator Cowan: I think you make that clear in your comment in the rationale section that there is no justification for that additional exemption.
Mr. Leadbeater: Exactly.
Senator Ringuette: I am interested in your comments concerning the Canadian Wheat Board being a monopoly; it is not a monopoly. In order to constitute a monopoly, you have to be the sole provider throughout the territory of Canada.
Mr. Leadbeater: I did not use the word ``monopoly,'' senator.
Senator Ringuette: You said the Wheat Board is engaged in ``monopoly activity.'' Those are your specific words.
Mr. Leadbeater: Not with respect to the Canadian Wheat Board; I was talking about the Mint and certainly, Canada Post is engaged in some monopoly activities. With respect to the Canadian Wheat Board, it certainly has the single-desk model, which is a way of organizing the market that puts it in significant control of a sector of the Canadian economy.
Senator Ringuette: They are not in exclusive control of a product provided within Canada for internal use or export.
Mr. Leadbeater: You could be correct because it does not go to my argument. My argument has nothing to do with the manner in which the Wheat Board conducts itself.
Senator Ringuette: Tell me, under the current act that you are administering, notwithstanding Bill C-2, what are the lists of private Canadian citizens or private corporate entities that are subject to your act?
Mr. Leadbeater: There is no private Canadian citizen subject to the act.
Senator Ringuette: And no private corporation?
Mr. Leadbeater: I am not sure what you mean by private corporations. The list of institutions covered by the statute is attached as an annex to the Access to Information Act. There are institutions of all different shapes, sizes and forms — board commissions, tribunals and marketing boards.
Senator Ringuette: You know very well what I mean by private corporate entities.
Mr. Leadbeater: Private corporations listed —
Senator Ringuette: Bell Canada is not subject to —
Mr. Leadbeater: No; that is a publicly traded corporation.
Senator Ringuette: That is right. There are not any of them under your act.
Mr. Leadbeater: No.
Senator Ringuette: So why should the Canadian Wheat Board be there? The Wheat Board is not a monopoly. It is not a Crown corporation. It is not an agency of government, so why should it be in the act?
Mr. Leadbeater: I think I gave my reasons; the reasons that we feel they should be is they have a public Crown guarantee, at the moment, of $6 billion. The federal Crown has the power of appointment of five individuals to its board. It engages in an area of activity that has a significant effect on the Canadian economy.
Senator Ringuette: The New Brunswick Potato Agency has similar guarantees to help New Brunswick farmers — similar to the Prince Edward Island farmers, potato farmers and so forth — in their exports, to make sure that there is survival for the crop. There is no monopoly there or Crown agency. Furthermore, the Mint is a monopoly; it is a Canadian monopoly that competes globally, and you have to make sure to understand that difference.
You did say, sir, that the Canadian Wheat Board was a ``monopoly activity'' in your statement, and I disagree. I totally disagree with you, so I guess we agree to disagree.
Mr. Leadbeater: May I respond to one of your statements? I am not sure if the Potato Marketing Agency in New Brunswick is subject to the New Brunswick access to information statute. I am not sure, but —
Senator Ringuette: No, it is not and it is not a provincial Crown corporation either. It belongs to the stakeholders, just as the Canadian Wheat Board belongs to the stakeholders. The New Brunswick Potato Agency has government guarantees to help farmers with putting in the crop in the springtime and bridging between the time that they put in their crop until September or early October, when their crop is out.
Mr. Leadbeater: I imagine that some of the public in New Brunswick would want to know what they are up to and some may not.
Senator Ringuette: The stakeholders know what is going on. They have regular annual meetings; they have rules and so forth. In any event, thank you very much.
Senator Baker: Just so I understand your position exactly because we just heard from the Canadian Wheat Board, as I understood what you said, your two main points were that the government has four or five appointees to the board of 15 members. Farmers elect 10, but since the government has that jurisdiction on the board to appoint four or five members and because there is a guarantee by the government within the agency itself, and because it fulfils a function, that is a public concern then its material should be disclosable.
Am I correct in that general rundown of those three main points?
Mr. Leadbeater: The power of appointment, the financial involvement implications for the government and the effect on the public economy, yes.
Senator Joyal: According to which statute?
Mr. Leadbeater: Pardon me?
Senator Joyal: According to which section of which statute do you come to that conclusion?
Mr. Leadbeater: That there is a power of appointment?
Senator Joyal: No, you come to the conclusion — I am sorry, Senator Baker —
Senator Baker: I yield the floor.
Senator Joyal: This is my first question, so I will give you back my time afterwards. You concluded it is a government institution and you said earlier on, in relation to the Canadian Wheat Board, ``it depends on the definition of government institution.'' Those are your exact words.
In order not to be discretionary in our conclusion on what is and what is not a government institution, identify for me in which statute a government institution is defined for the purpose of the Access to Information Act?
Mr. Leadbeater: The way it is defined in the Access to Information Act is a government institution is any institution listed in the schedule to the statute. We are debating now whether this should be listed in the schedule to the statute. It does not have any criteria and I agree with you 100 per cent there should be. We have proposed some criteria. However, those are not part of this.
Senator Joyal: To whom did you make that proposal?
Mr. Leadbeater: We proposed to the Standing Committee on Access to Information, Privacy and Ethics in the form of a proposed open government act, which we have put forward as a comprehensive way of amending and strengthening the Access to Information Act. We encouraged this committee, when we appeared before, to not adopt the provision of Bill C-2 that makes it cabinet's prerogative to define those and to make it Parliament's prerogative by putting it in the statute. This committee has already accepted that it will be the cabinet's prerogative to do that, and it is not one of the provisions that I have commented on today.
You are right — you can play with the definition all day but, in the end, we think Parliament should play with the definition.
Senator Joyal: I understand that. That has cleared the issue. I apologize, Senator Baker, but I think it has been helpful to our discussion.
The Chairman: That was a useful clarification.
Senator Baker: Yes, I agree. You gave some examples of those three factors. Immediately I thought of government involvement in many corporations. An example could be when there is a bail-out in the fishing industry. As you will recall, that happened with National Sea Products Limited. The government, because of the bail-out, appointed a certain number of persons to the board.
Would you suggest that a private company having government appointments to its board because of the guarantees by the Government of Canada should be subject to disclosure?
Mr. Leadbeater: Without knowing more details, my initial instinct is to say, no, because it would not fall within the proposed criteria for government institutions.
Senator Baker: Why is that? It covers the government financial guarantee and government-appointed members to the board. I suppose that the third element in your standard of review is missing. The third element is of great public concern and you would say that it is missing in the example that I used above.
Mr. Leadbeater: Yes, and one of the elements of the definition that we have proposed in the open government act in the other place, is that there be a requirement of the Governor-in-Council to add to the schedule and make subject to the act, (a) all departments and ministries of the Government of Canada; (b) all bodies or offices funded in whole or in part from Parliamentary appropriations; (c) all bodies or offices wholly or majority-owned by the Government of Canada; (d) all bodies or offices listed in Schedule l.1, 1.2 and 1.3 of the Financial Administration Act — Crown corporations and so forth; and (e) all bodies or offices performing functions or providing services in an area of federal jurisdiction that are essential to the public interest as it relates to health, safety or the environment.
Senator Baker: The public interest element is missing in the example that I gave you whereby the Government of Canada would appoint a certain number of members to a board and would guarantee their financial viability.
Mr. Leadbeater: Yes.
Senator Baker: You gave an example earlier using NAV CANADA when you said that some should be open to disclosure.
Mr. Leadbeater: Yes.
Senator Baker: However, NAV CANADA is not similar to the Canadian Wheat Board in that it does not seek the same protections.
Mr. Leadbeater: There are many different and complex examples. There have been no others exactly like the CWB. Canada Mortgage and Housing Corporation is engaged in a significant amount of competition in the commercial sector involving highly sensitive information, and it is covered by the statute.
Senator Baker: You mentioned another example of fish marketing boards. The only fish marketing board that I know of in Canada is the Freshwater Fish Marketing Corporation and that is a Crown corporation.
Mr. Leadbeater: I am saying that we are not looking at the form of the institution, which is one element only.
Senator Baker: My problem is that in every example you gave, not one had the same elements for consideration as the Canadian Wheat Board. Your general premise that anything needing to be protected is protected anyway. Why are you seeking an amendment to protect your investigations and your audits?
Mr. Leadbeater: We are not doing that.
Senator Baker: You are not? You do not agree with some of the amendments that we made that gave you greater protection and that the House turned down.
Mr. Leadbeater: No, we think there is sufficient protection in the statute for our operations and the operations of the other offices of Parliament. If the government were to put in special exemptions for the offices of Parliament, then it would provide even more protection to two of them: the Auditor General and the Commissioner of Official Languages. We are saying that at least all of us should be on the same level playing field — the more open part and not the more secret part of the playing field.
Senator Baker: You do not agree with 113(a).
Mr. Leadbeater: We agree with the Senate amendment on 113(a).
Senator Baker: That includes the Office of the Information Commissioner.
Mr. Leadbeater: It includes the Commissioner of Lobbying.
Senator Baker: It includes the Information Commissioner.
Mr. Leadbeater: That was already in the House version.
Senator Baker: Do you agree with inclusion of the Information Commissioner?
Mr. Leadbeater: Yes.
Senator Baker: Why would you agree with that?
Mr. Leadbeater: We have powers to order people to produce records for us. If government institutions thought that we would then be subject to giving them out, it would inhibit their cooperation with our investigations. If we did not have an exemption for the material that we collected during our investigation, then government institutions would be concerned that we would give it out. We did not agree with that but government institutions said that if we are to come under the Access to Information Act, then it would make it mandatory that we not disclose what it gives to us.
Yes, we are prepared to accept that, if that makes government institutions more comfortable. However, we did not ask for that, and we are happy to live without it.
Senator Baker: You do not think it is necessary to include that?
Mr. Leadbeater: No, I do not.
Senator Baker: You do not agree with 113(a).
Mr. Leadbeater: Well, there were several things with which we disagreed when we came before this committee in the first round. We will not now argue the points that we have already lost. However, we are prepared to live with an exemption for the Information Commissioner to protect the information that we collect from other departments in the course of our investigation.
Senator Baker: I can understand your reasoning. I am wondering why you would not understand the reasoning of the Canadian Wheat Board not being an example of any other body and that it is certainly not equal to any of the bodies that you mentioned in your examples a few moments ago. Why would you not agree that perhaps they have a special case as well?
Mr. Leadbeater: I would make this point: Do you think the Canadian Wheat Board has information that is more sensitive than the information held by the Bank of Canada?
Senator Baker: I do not know. You tell us.
Mr. Leadbeater: Do think they have information that is more sensitive than the information held by the Canadian Security Intelligence Service?
My point is that Parliament takes great care when initially crafting these exemptions. The exemptions are in the statute to protect all of the sensitive information that falls into the categories of national security, commercial sensitivity, privacy, protection of advice giving, all of these things.
If you look on the CWB website there is a list of the information that it will not disclose including personal farmer or employee information. There is an exemption in the statute; it is mandatory for personal information. The list goes on to include commercially or strategically sensitive information, there is a provision in the statute; advice or recommendations to government, there is a provision in the statute; information subject to solicitor-client or litigation privilege, there is a provision in the statute; information that if released would undermine efficient business function; there is a provision in the statute and it is section 18. That is what they say they will not disclose. That is protected by the statute.
Senator Baker: Yes.
Mr. Leadbeater: This is not a situation where the CWB is going to be into a radically new regime, but the difference is that people will have as of right the ability to get this information, not by grace and favour. That is the difference.
Senator Baker: Therefore no one needs really to be protected, not even you?
Mr. Leadbeater: That is why we argued against so many of these special exemptions that were included in Bill C-2 when we first came before you, including this particular provision that we have been talking to, 18.1, we argued against that. We said these provisions impose blankets of secrecy with no requirement to demonstrate injury forever.
Senator Joyal: I will just add to your last answer that the Wheat Board would not fit the definition that you propose in an open act that you have tabled with Parliament. That is the way I read the various classes of institutions that you have listed. Maybe it is a good case to review those definitions, but as far as I can read from what you have already given us, the Wheat Board does not qualify in any of the classes of institution that you have described in your proposed draft bill.
Mr. Leadbeater: I certainly agree with you that I wish we could have a legislative process to talk about the definition of government institution. That is one part of Bill C-2 I regret will go off to be dealt with in the hallways of PCO.
Senator Joyal: My only question to you deals with page 2 of the list of amendments to which you agree.
Mr. Leadbeater: Yes.
Senator Joyal: You refute the rationale of the House of Commons on amendment 118, the famous section 150.
The Auditor General was quite adamant when she testified that she knows the business, you do not know how to audit, that in terms of concluding on what should be made available and not available, she is the authority.
I cannot question the authority of the Auditor General to be the best judge in her own case. The only thing that concerns me in relation to that amendment is that no one ever proved to us that the previous regime was inimical to the performance of the mandate of the Auditor General. No one has been able to prove to us any single compelling case whereby the fact that the draft audit or draft working paper would, if they were released as they are released now because I understand that is the present situation — they are being released now. We are closing that access now. It is the reverse procedure, if I understand correctly.
Mr. Leadbeater: That is right.
Senator Joyal: No one has been able to prove to us that this would make the mandate of the Auditor General more difficult in future if we maintain the present situation. The Auditor General has taken the other way around. She said to close that because it will expose her office to greater difficulty in performing her mandate because it will create a chilling effect. Well, the chilling effect has been there for 50 years or so that we have had an Auditor General.
Mr. Leadbeater: Yes.
Senator Joyal: Are there any other arguments that we do not know about that we should be made aware of in order to stick to that amendment or yield to the arguments of the Auditor General?
Mr. Leadbeater: The argument was tried out on Justice Gomery in spades and Justice Gomery did not buy it. He felt it was too important to the accountability of the government institutions through transparency to at least at some point allow drafts to become accessible.
The reason he concluded that was because of what he saw in evidence before him, that drafts very critical of government programs were watered down, changed and became more positive as they went up through the approval process. If only finals were released then the development of the problem, the interference with the audits for example would never come to light.
The argument that was made to Justice Gomery that auditors would never keep proper working papers if they thought they were going to be released or auditors would somehow or other have more difficulty in preparing their audits, was disproved by 23 years of history. We have had 23 years under the present regime, where auditors who are professionals put together their working papers in a professional manner and if they do not that is discovered through subsequent disclosure.
The system is now built to ensure quality of audit work, not the reverse. That is the position that Justice Gomery took, and that is the position we have seen in our own work over 23 years. There is an improved level of professionalism in the audit work, there is less gossip and innuendo and unsubstantiated comment in the audit work, and that overall it has greatly improved the accountability of government institutions.
Senator Day: The Auditor General does not want the internal audit papers. You will remember proposed section 16.1, at page 118 of Bill C-2. The Auditor General wanted to be exempted along with the Commissioner of Official Languages. The Auditor General indicated that her department would be hampered in performing its audit functions because people would not be forthright and they would not cooperate if they thought some of the things they said might become subject to the Access to Information Act.
She wanted a blanket as you will recall, and we changed that. The concern of the Commissioner of Official Languages was that people complain French is not being used in a particular area, and he said people would not complain any more if they think their names will potentially become known. What is Air Canada going to do if they get to know that someone is complaining, but every time they fly to Calgary there is someone on that flight every Friday afternoon who is complaining that there is not proper French being used on the plane?
There are legitimate concerns and I would like you to tell me how we can satisfy them if we are not able to achieve the amendments that we have sought and the House of Commons has refused. Tell me what we can do here to put the minds of the Auditor General and the Official Languages Commissioner at ease?
Mr. Leadbeater: I will answer this way: If this committee is satisfied and convinced by the Auditor General and the Commissioner of Official Languages that people will not complain to them and that they cannot properly do their job, then you better give us, the Information Commissioner and the Privacy Commissioner and the Commissioner of Lobbying, the same treatment, because we do the same work. We receive complaints; we conduct investigations; we seek information; we interview witnesses.
In my previous presentation to this committee, I mentioned that the Commissioner of Official Languages tried this argument out on the Supreme Court of Canada. ``Supreme Court, we cannot do our job if we have to give out information under the Privacy Act,'' because they are subject to the privacy act now. ``In order to protect future investigations, we must keep everything secret.'' The Supreme Court said we do not buy it. You have not shown us that these harms would happen. You have been in business how many years, and you have not shown us.
We are saying that even officers of Parliament surely have to have a measure of accountability over how they do their work and how competent they are, at some point in history, and this says after investigations are over with, that there must be a measure of openness and transparency.
Senator Day: I believe it refers to two years.
Mr. Leadbeater: Someone, surely at some point will want to write the history of how the Auditor General conducted the sponsorship audit. That will be important to do. If this goes through, that will never be written.
Senator Day: The Auditor General says that after 16 years, she sends all that over to Library and Archives, and you can talk to archives about getting that information.
Mr. Leadbeater: The archivist will have to maintain that in confidence too. It is a mandatory exemption. She is a wonderful Auditor General. We are very lucky in this country to have her.
Senator Day: Agreed.
Mr. Leadbeater: You do not write laws assuming that the institutions will be run by saints. You write laws for institutions that will be run by human beings. That is why we have accountability through transparency. At some point, you might get an Auditor General who does nothing but approve everything the government does. Would you not want to find that out through being able to get access at some point and seeing the audits?
It is time that officers of Parliament get down into the real world along with everybody else. If the RCMP and CSIS and the other investigative bodies in this country can make do with the injury-test exemptions in the statute, surely we can too.
Senator Day: I referred to that two-year issue, and that is over on page 120, clause 150 of Bill C-2. We proposed an amendment after section 22. Internal audits of the government are distinguished from related audit working papers, and the related audit working papers did not appear in the second portion. It says, ``However the government shall not refuse.''
Can you think of a logical reason why there would be a restriction on an internal audit of a government institution, a draft report of an internal audit, and any related working papers if the record came into existence, et cetera? There are two different things, and you go down to the second section, and it says however, after the job is done, or within two years, some of it can be made available after the final report is out. It does not talk about the related working papers, or if it does, I cannot locate it. It only deals with half of it. Can you help us as to why only part of it would become available under Access to Information? What is the policy reason for keeping the related working papers secret forever?
Mr. Leadbeater: I think that the proponent of this, the Auditor General, felt that the work product of internal auditors needed a zone of secrecy in order for them to do their work effectively. As I mentioned in my previous answer, that is something with which my office disagrees, as did Justice Gomery.
Senator Day: This is not just the Auditor General. This is internal audits of any government institution.
Mr. Leadbeater: The Auditor General was the proponent before this committee on this provision. That is all I meant to say.
Senator Day: You are not able to help us any on that one.
At page 123, you mentioned Atomic Energy of Canada Limited, and you noted proposed section 68.2 of your legislation. That is clause 159 of Bill C-2. You say that Atomic Energy of Canada Limited is now under the Access to Information Act, but look at what it says:
This Act does not apply to any information that is under the control of Atomic Energy of Canada Limited other than information that relates to
(a) its general administration or its operation:
Only these two aspects are available. That was one of the CWB points; that proposed section is fine in some instances, but for other items the CWB must offer greater protection.
Many of the proposed sections include new institutions, but exceptions are created at the same time. I understood you to say that you thought that they do not need those exceptions. We want to bring them in, but they do not need the exceptions because the existing legislation has enough exceptions.
Mr. Leadbeater: That is correct.
Senator Day: That is your position?
Mr. Leadbeater: That is my position, yes.
Senator Day: That is what I thought you were saying. I look at how to protect the information. Going back to the Official Languages Commissioner, how can we protect the complainant's name? The personal information is protected, and I presume that is under section 19 of your existing act; is that correct?
Mr. Leadbeater: That is correct.
Senator Day: It refers to section 3 of the Privacy Act. I spent my time thumbing through all these different acts to see what is protected, and I cannot for the life of me find how the name of the individual would be protected under section 3. This is a complainant who is complaining. How would that name be protected under section 3 of the Privacy Act, which is then incorporated into section 19 of your act? I think that is part of the problem. Nobody is comfortable with going through all of these things when you apply it to a specific problem.
Mr. Leadbeater: I have the definition of ``personal information'' from the Privacy Act.
Senator Day: Yes, so have I.
Mr. Leadbeater: It says that personal information means information about an identifiable individual that is recorded in any form, including, without restricting the generality of the foregoing, and then if you look at paragraph (i), the name of the individual where it appears with other personal information.
Senator Day: Where it appears with other personal information.
Mr. Leadbeater: With the name of a complainant, you get the name and the fact they are a complainant. Correct?
Senator Day: The question is who has been complaining?
Mr. Leadbeater: Yes. That is two pieces of information, the name and the fact that the person has complained.
Senator Day: Suppose they just send back the name with no other information?
Mr. Leadbeater: It is implied in the question.
Senator Day: If the Commissioner of Official Languages thought as you do, he would not be concerned about this amendment to Bill C-2. He obviously feels that the name of an individual, when it is associated with other information, is not clear.
Mr. Leadbeater: Let me just put it this way: The Commissioner of Official Languages is subject to the Privacy Act and has been ever since 1983. The Commissioner of Official Languages surely would have one example of a complainant whose name the commissioner had to disclose.
Senator Day: He has not brought one to your attention.
Mr. Leadbeater: No.
Senator Day: He has not brought one to my attention.
Mr. Leadbeater: I believe it is clear that it is personal information.
Senator Day: Exactly.
Mr. Leadbeater: That is a mandatory exemption.
Senator Day: I will ask my final question. That series of amendments — 139, 140, 142 and 143 — all relate to the issue you brought to our attention with regard to section 55 and Mr. Poilievre, parliamentary secretary to the minister responsible for this.
You support what the Senate has done. You point out here that these are recommendations of the Public Service Integrity Officer and you support them. Two officers of Parliament support the amendments that we have proposed and that have been rejected by the government.
Mr. Leadbeater: I think Mr. Poilievre supports you, too, if you read his words.
Senator Day: I understand your point. That is tab d of your material and we will read that with interest.
My final issue is with respect to retroactivity. We get into a debate about retrospective legislation and retroactive legislation, which is not awfully convincing. It will potentially apply to information that was provided to a government institution when it was not subject to the Access to Information Act. I could disclose some commercial information to an organization from which I want to get a loan. It could be very sensitive commercial information, not technological information. It could be my entire business plan for starting a new business under the Export Development Corporation or a number of other government business-related organizations. I might be looking for a loan. If I knew when I was dealing with that government institution that the information would potentially be disclosed to whomever under access to information, then I might not have disclosed it, or I might have disclosed it in another manner. That is our concern.
We agree going forward, because everyone knows what the rules are going forward. We are concerned about new rules applying retrospectively. That is our concern with this legislation.
When the Access to Information Act first came in, there were significant delays in bringing in the rules to allow for adjustment to these new rules. There is no adjustment provided for this expansion. That is our concern. Would you like to rethink your answer based on understanding our concern?
Mr. Leadbeater: I would like to address your question. It is very interesting that you used the example of the Export Development Corporation. Why do you not have that organization on this list? Why do you not have Canada Post in this list? Why is VIA Rail not on this list?
Senator Day: What list are you talking about?
Mr. Leadbeater: I refer to the list in proposed section 68.3. These are newly-added institutions.
Senator Day: These are new institutions that are being brought in that are dealing with sensitive information that might possibly be dealt with differently. If people knew, when they were dealing with the Canada Foundation for Sustainable Development Technology, that that organization would be subject to the Access to Information Act, they might have dealt with that organization differently. They might not have applied for the loan. They might have withheld some of the technical information. They could have done many things differently.
Mr. Leadbeater: I understand your argument and I am answering it in two ways. One is, if your argument has merit, why only these organizations and why not for all the newly added organizations?
Senator Day: If you are suggesting we should expand it, I accept that.
Mr. Leadbeater: Second, I am saying the exemptions also apply retrospectively. The exemptions are still there for all that information. The exemptions are vibrant enough to capture that.
Senator Day: Are these the existing exemptions, section 18, for example, in your current legislation?
Mr. Leadbeater: Exactly.
Senator Day: We tried to create some specific exemptions.
Mr. Leadbeater: There are many new ones added.
Senator Day: Many of them were rejected, too, by the government. For example, we tried to give the Canada Foundation for Sustainable Development the same type of exemption that some others were given, and that was rejected, but the argument of the government in rejecting it is difficult to understand. I thought maybe you could help us with that.
Mr. Leadbeater: I just happen to agree with the government on this one, that this is overkill. Do you want more accountability through transparency? Is that not what this bill is about? Accountability through transparency means that institutions have to discharge a burden of proving that they need secrecy before they get secrecy. They do not just get blankets given to them by Parliament saying, ``Everything you have ever kept secret before, go ahead, keep it secret for the future, forever.''
Senator Day: We are looking for fairness and for an adjustment.
The Chairman: He has answered that, in fairness, Senator Day. You are just arguing with the witness.
Senator Day: He asked me a question, so I had to answer. I never want to leave questions unanswered.
The Chairman: Let me speak for once.
Senator Day: For once?
The Chairman: You put a question to the witness and the witness responded. You did not like his answer, but you do not have to argue with him. The witnesses are here to answer the questions fairly, which they are doing. In fairness to the witnesses, they are doing a good and honourable job and we should let them continue to do that.
Senator Day: Mr. Chairman, I bow to your gavel.
Senator Cowan: I wanted to follow up on Senator Day's question, but I do not dare do that now.
The Chairman: Mr. Leadbeater, on behalf of the committee, I would like to thank you and your associates very much for coming here and answering questions on some areas that are troublesome and that are difficult, but you have acquitted yourselves very well in doing so.
The committee continued in camera.