Mr. Michael Jenkin (Co-Chair, Consumer Measures Committee, Department of Industry):
Thank you, Mr. Chair.
David and I will be pleased to answer your questions after a brief opening statement. I would also like to remind you that we've left you a package of information from the consumer measures committee, and I'll be referring to some of the documents in that folder in my remarks. It's part of our public information to consumers on identity theft and a few other issues as well.
So thank you, Mr. Chair, for providing the consumer measures committee with the opportunity to discuss its efforts in regard to identity theft. The consumer measures committee, or, as we call it, the CMC--everyone loves an acronym--is a forum of federal, provincial, and territorial officials responsible for consumer affairs. So it's not part of the Department of Industry; it's actually a separate federal-provincial body.
I'm the federal co-chair. There is a provincial co-chair as well, although that position is in the position of being filled. The previous incumbent left his position, and he's being replaced by another provincial representative.
Every jurisdiction in the country is represented on the CMC, both provinces and the territories.
The Consumer Measures Committee, or CMC, was established under the 1995 Agreement on Internal Trade, in order to facilitate the process for reconciliation of consumer-related measures and standards, and to provide a forum for discussion among the jurisdictions on issues related to such measures and standards. Since its inception, CMC has been active in examining a variety of different issues that are of concern to Canadian consumers.
Depending on the issue at hand, CMC has conducted in-depth policy research and analysis, developed consumer education initiatives, or agreed to the harmonization of legislative measures. For some issues we've done all three.
All our efforts are carried out with a view to protecting consumers and informing them so they can better protect themselves. Consultation with stakeholders and the public is an integral part of our work.
I might add that CMC serves as a very useful informal network for officials to share information on new issues that are arising and on new initiatives individual jurisdictions may be undertaking or may have heard about.
Identity theft is one of the issues on CMC's plate. It is a particularly appropriate issue for our forum, given that it is an issue that cuts across borders, and touches upon the responsibilities of a very diverse set of government authorities. At the same time, I should note that there are many facets of the issue that fall outside of the various CMC members' mandates, such as the criminal aspects of identity theft.
In 2003 CMC struck a working group of federal and provincial officials to examine options for improving the situation for consumers in regard to identity theft. That working group is co-chaired by a representative of the federal government, Mr. Clarke, who is with me today, and an official from Ontario's Ministry of Government Services. The focus of the work so far has been two-pronged, based on one hand on public information and education and on the other hand on examining policy options to improve the consumer protection landscape for Canadians.
I would like to deal with each of these in turn.
First of all, in regard to consumer information and education, CMC's efforts stem in large part from the concerns expressed by ministers responsible for consumer affairs at their meeting in January 2004 in Winnipeg, where--and here I'm citing from the communiqué from that meeting--“Ministers recognized the serious concern that identity theft poses for consumers, leaving victims with a poor credit rating, ruined reputation and money losses.” The ministers agreed, as a first step, to harmonize information efforts to bring consumers the most reliable and complete information on how to reduce the risk of being victimized.
Since then, CMC has been very actively engaged in efforts to inform the public, both consumers and business, about how to prevent ID theft and what to do if it occurs. First of all, CMC developed the identity theft kit for consumers; it can be found on CMC's own website, at cmcweb.ca. It can also be found on the Canadian Consumer Information Gateway, at consumerinformation.ca, and I might add that the gateway is a portal, providing consumers with access to information from federal, provincial, and territorial governments and from a variety of respected consumer non-governmental organizations.
The kit includes information to help consumers reduce the risk of identity theft, assess whether they have become a victim, and advises them on what to do if they do fall victim.
It is essentially a set of forms that ID theft victims may use to help organize the information they need, so that they can more easily deal with financial institutions, credit card issuers, the police and other officials in repairing the damage done.
The ID theft kit for consumers was developed in a process of extensive consultation among and within the relevant federal, provincial, and territorial government departments, with businesses and financial institutions and with consumer organizations. As a companion piece to the consumer kit, a one-page checklist--which I have here--was produced to summarize key information for consumers.
In addition, a number of CMC members expressed the view that it would be useful to develop a document that would be destined for businesses. The result was the business identity theft kit, released in 2004, which includes sections on how to reduce the risk of compromising consumers' information, what to do when a thief strikes, and how to tell consumers about a breach. That document is also on the left-hand side of your folder.
The business kit, again, was developed by CMC in consultation with businesses and consumers. It, too, is available on the web at the two addresses I mentioned as well, at www.cmcweb.ca and consumerinformation.ca.
I hasten to add that CMC takes advantage of opportunities to distribute its educational products when and where it can. We always participate in fraud prevention month, for instance. This year we sent copies of the checklist--that's the blue document--to police groups throughout the country that deal with fraud and speak to public groups and so forth. We received a tremendous response to that initiative from police services, who asked for more material, which we supplied.
Identity theft continues to be a priority consumer issue for us. A section on identity theft has been included in the latest CMC consumer awareness projects targeted at seniors and youth. In addition, consumerinformation.ca currently has identity theft on its front page “Focus on...”, so that consumers, as soon as they hit the first page of the site, have their attention drawn to that particular item. In some cases, individual governments have also adapted the materials we've prepared to suit their own needs.
That's an overview of some of the information efforts we've taken to let consumers know about identity theft.
In regard to policy research and analysis, as you may be aware, CMC carried out a consultation on identity theft in 2005. That paper is available on our website at www.cmcweb.ca.
And I understand the clerk circulated a copy of that consultation document to you earlier on.
This was an effort that carried over into 2006, with follow-up discussions with some stakeholders. The consultation posed a number of questions in regard to possible measures to improve consumer protection.
These included some matters related to how businesses, financial institutions, consumer reporting agencies, and others handle or should be required to handle consumers' personal information in a way that would reduce the risk of identity theft and how to help when consumers become victims. CMC reviewed and analysed the issues raised in the consultation and took the opportunity to discuss them all, based upon the responses received and upon the various jurisdictions' specific concerns, mandates, and individual priorities.
Three major areas of focus for CMC discussion following the consultation were, first, a requirement that consumer reporting agencies implement security alerts on credit files when consumers request them. The effect of such a measure would be to ensure that those organizations that use credit reports--lenders, landlords, retailers--will see the fraud alerts on the consumers' report and take responsible steps to verify the identity of the person seeking the credit or service. Provinces saw this as an important issue, and we've already seen Ontario and Manitoba move forward with measures in this regard.
The second item was a requirement that consumer reporting agencies freeze consumer files at the request of consumers who have been the victims of identity theft. While this was a concept that interested jurisdictions, we heard a great deal of concern from business stakeholders about the potential effect such measures could have on consumers' access to credit when they need it. The technical feasibility of the implementation of credit freezes was raised by the industries as a concern as well. CMC determined, as a consequence, that it would not be appropriate to move forward with credit freezes at this time.
The final major issue in the consultation was mandatory notification of consumers in instances of security breaches within organizations. This was also an issue that prompted considerable discussion among CMC members, and interest, but given that the PIPEDA review was taking place, it was ultimately felt that CMC was not the appropriate forum at this stage for moving forward with recommendations for legislative change. Individual jurisdictions agreed to make any views they might have on the matter known to your committee during the review, and I understand at least one jurisdiction has written to the committee in regard to its views in that regard.
With regard to some more technical issues touching on the consumer reporting industry, which include credit reporting, it was felt that it would be better to deal with those in the context of a separate consultation focused exclusively on the laws governing that sector. These issues include what information may be included on a consumer's file and for how long, as well as the procedures for addressing consumers' concerns about the, and the document is being prepared for public distribution right now.
For now, let me note that CMC continues to be engaged on this issue. As I noted, identity theft is a matter that cuts across borders and engages the responsibility of many actors, in both the public and private sectors.
Coordination among and within governments is a challenge, one that CMC recognizes, but which we will continue to address.
On behalf of all members of the federal, provincial and territorial Consumer Measures Committee, I would like to thank you again for this opportunity to appear before the Standing Committee on Access to Information, Privacy and Ethics. I would be glad to answer your questions.
Thank you, Mr. Chairman.
Mr. Mike Wallace:
Thank you, Mr. Chair.
I appreciate my faux ami across the way pointing out some things from the transcript, because I would also like to point out some things from the transcript with the commissioner, things we dealt with, just to be frank.
If you let me start, I will do one thing to see if I can get some more support from the other side, and it goes to Mr. Peterson. I'll make a friendly amendment to my own motion.
Are you guys listening? You're not going to listen? Okay, good.
After the word “ruling(s) on”, I have “any and all”. I'll change that to “current ATI complaints his office has received”. So if in two years, a year, or six months from now somebody else complains about it, fine, but our understanding is that there are current issues in front of him.
If I can have some time, Mr. Chair, I want to look at what was said in our committee. Mr. Peterson had asked if there were any specific complaints to Mr. Marleau about this piece of paper being blacked out or questions as to why Canadians were denied access to the proper information. Mr. Marleau said, “I'm informed that we have a specific complaint at this time. I'll ask the deputy commissioner to comment.”
Here's what his comment was. Mr. Leadbeater said:
||Mr. Peterson, as you know, we have a statutory obligation placed on us by Parliament not to disclose the details of what is ongoing. I certainly would be prepared to talk to you, or any other member, who wants to raise an issue about this.
--because you had raised the question of putting them on notice that the Liberal Party may bring in an ATI complaint--
|| However, if someone is going to complain about the answer to an access request, it needs to be the person who made the request. Anybody has the right to make an access request. The scope of our jurisdiction is set out in section 30 of the statute. We certainly will take your representation and ask our legal services--
--and so on and so forth.
Then Mr. Peterson asked “Is it legal for government officials to black out a report to the extent that has been reported?”
Mr. Leadbeater said:
||There are a number--13, actually--of reasons in the statute that justify secrecy. We have seen cases where one of those reasons will justify the withholding of an entire record, and we have seen cases where the withholding has been overzealous. It would require us to examine the specific case to determine whether it was improper.
That is a quote from the deputy commissioner of the Office of the Information Commissioner of Canada.
Now, my reason for quoting that back to you, so it's a fresh reminder, is that what my motion does is ask that once they've done their work--
An hon. member: Let them do their job.
Mr. Mike Wallace: --then you can call them and then they can comment on it. You do not let them do the work. They will come here, and I can guarantee you they will say it's an issue that's before them and they cannot comment on it. That's even if you call the Information Commissioner or the ATI staff member in Foreign Affairs; they will not be able to give you any answers to any of your questions.
Now, if you want to talk about ATI requests that have been appealed to the commissioner, where the commissioner has ruled, then where the department has taken the commissioner to court--there are 48 of them or whatever--and where the commissioner has won every time, maybe you want to bring all those people back. I think there's even...it's the Government of Canada or the Attorney General...and the minister at the time mentioned a number of them. I think the Liberal minister actually still sits in the House, though not as a minister. We could call them to find out what went wrong in the process, with them blacking something out, people appealing it, and losing in court against the Information Commissioner.
I'll be happy to have a long discussion on where those issues went under the Liberal government, if that's of interest to the committee, but on this particular case that is in front of us, it has been indicated by the Information Commissioner that they will not be giving.... They would not answer even Mr. Peterson's questions when he was asking them. They will not do any reporting on it until they're finished with the investigations they're working on, on these particular ATI complaints.
I'm very sad for the witnesses we had here today. I think we could have dealt with this at the end of the meeting. But I think it has been clear to us that they've already told us that they won't be coming here to deal with it, that it's in the system and they can't comment on anything that's in the system. I made a friendly change to call it “current ATI complaints”, to resolve the issue that the Honourable Mr. Peterson brought up, that it could go on forever.
I think my motion is ruled in order. I think it's the appropriate thing to do. Other members have mentioned that other committees are trying to do things with it. I don't think Madame Lavallée's request is inappropriate, being that this is the access to information committee, but we're here to give advice on the policy pieces on different items.
I could probably talk for another 50 minutes, but I don't think that's fair. I know many people want to hear me for 50 minutes. But we've been told we could try to call witnesses. I would be very, very surprised, based on the information I have, if they would be able to appear with that in front of us, and then we will end up with no motion, because we won't be able to do anything on it, and then where are we? What have we gained?
That's why my motion I think is appropriate and it does what this committee has set out to do. That's my final word on my motion, Mr. Chair, and I appreciate that.
Mr. Mike Wallace:
Thank you, Mr. Chairman.
I'm glad we're all reconvened here to deal with the motion that's in front of the Standing Committee on Access to Information, Privacy and Ethics about urgently addressing the internal report that was issued by Foreign Affairs and to consider evidence if there was any violation....
I want to make sure that members of the committee understand what the act has in it, so that if and when this passes, the questions we ask the individuals who may or may not appear, based on whether they are able to, with an ATI piece in front of them...that we ask them questions that deal with the act that the Office of the Information Commissioner deals with, in terms of access to information.
I'm not sure that we're all absolutely aware of all the parts, but there are exemptions, which I think the deputy commissioner indicated before at committee, and I read out that there were at least 13. There were a few, and this is a Foreign Affairs document that had been requested. I read out sort of a briefing of what kinds of areas. Sections 13, 15, 17, and 21 quite often apply to Foreign Affairs.
It is important for us, because we're all busy and may not have all the information that the Information Commissioner deals with and what those sections actually mean.
I happen to have a couple of them here that I might talk about. There are exemptions to getting that.
Again I want to remind the committee that this legislation is not brand new; it started in 1983. We can show where the Information Commissioner made a ruling that was appealed by the government of the day, which I believe was Liberal, and it went to court based on these exemptions and on these things.
If this motion does pass, I am looking forward to...that we will get all the court cases that have happened and what the circumstances were. They are all concluded and they are public knowledge. We have free access to call on that documentation and the witnesses who were involved in those cases—whether they are from the ministries, maybe even the person who did the ATI request—and the commissioner and his staff, who might be able to come and tell us about why they thought it should be appealed, what the results were, and how they came to their conclusions.
Based on their testimony on those issues that happened before the Conservative government took office on January 23, 2006, they will be able to enlighten us as a committee on a number of areas where the government of the day, which was Liberal, decided that it met the exemptions. Then the commissioner had to take them to court over that.
This should make a very interesting discussion about what policy changes might need to be made to the act to reduce that. It's very costly to the taxpayer. Not only is staff involved and tied up in meetings and doing reports and background studies....
I think most of this was resolved by 2004, long before we were in office. But it happened over a number of years, and there would probably be a fair amount of research. So that would tie up the staff in terms of doing what they were doing. It would be fairly costly to the taxpayer, but I think it's important, if that's the kind of road we have.
Those are legitimate issues that are dealt with once a decision has been made by the Information Commissioner, and not in the middle of a process, which we are doing here.
One of the exceptions is actually entitled “Responsibilities of Government”. I don't know the details of the specific piece we're talking about, but I think “Responsibilities of Government” makes it clear to whoever is the government that these are the rules that are set out in particular cases.
In section 15, it's “International affairs and defence”.
The motion talks about a Foreign Affairs report entitled, Afghanistan 2006; Good Governance, Democratic Development and Human Rights. Obviously section 15 applies directly to that.
I don't have the details of what happened there. I know for a fact that they have at least one person in the department, in the ministry, who has been doing similar work. My understanding is that since about 1978.... Obviously the act didn't exist then, but there have been ATI people around since the inception of the act.
I don't know for sure, but we will see if this motion passes. At this point, I'd be happy to call any individuals who are involved in this. My previous motion would have dealt with it after the Information Commissioner ruled.
We are dealing with people who have experience protecting the information that is important to Canada and other countries for security reasons...and to help build on the confidence that other countries have in providing us with important intelligence that we would need to make good policy decisions in dealing with situations around the world.
In the “International affairs and defence” portion, subsection 15(1), it says:
||The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restricting the generality of the foregoing, any such information.
The report that was brought forward obviously relates to the international affairs piece exemption that is in the act in subsection 15(1). It is an international affair. It's from Foreign Affairs. It talks about what we're doing in Afghanistan in terms of good governance, democratic development, and human rights. Information provided in that report could have been...and I don't know because that ATI request hasn't been looked at. The ATI request was done, and the ATI individual provided the information from Foreign Affairs.
In my understanding, there has been some appeal of that decision, and it has gone to the commissioner. Of course, they have not ruled on that, so it may be accurate that the reason the areas were not made public was because it has to do with our international affairs with Afghanistan.
It states clearly in the legislation in subsection 15(1) that matters having to do with international affairs that could be hurtful to Canada or to our partners.... I believe in this environment that Afghanistan is certainly a partner of Canada. We have a very close and important relationship with them at this time, particularly with our men and women doing very brave work in their country, trying to bring democracy, and rights for men and women and children that haven't existed there for many decades.
We are doing more than our share. We have about 36 partners there, but I believe, and I think everyone around this table believes, that Canada is doing its share in Afghanistan and making a difference.
So the report could have had an effect, and based on the law, which was set out by politicians before I got here, there is an exemption for that particular reason.
Paragraph 15(1)(a) says:
||relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention or suppression of subversive or hostile activities
In this case, again I don't know what's in the report, but the ATI person, once the commissioner rules on it, will be able to decide whether it meets the criteria of paragraph 15(1)(a), which, as you know and as I've just read, could deal with military tactics, strategy, or exercises. I don't know what the report said. We know what was released to the public, but the report is about good governance and democratic development. We have people on the ground, both militarily and non-militarily, in Afghanistan doing good work in terms of humanitarian work.
Paragraph 15(1)(a) could have an effect and put them at risk. We have the report and it may—I'm not saying it does or doesn't—have had an effect on our relationship with our Afghan partners. It may have provided information to those who are not in favour of our being there, meaning those whom we consider the enemy in Afghanistan. It could have put at risk the potential good work of our humanitarian efforts there, whether through CIDA or other non-governmental organizations who are providing water, helping to provide school systems, and doing all kinds of development work there. I think it's appropriate, as the act says, for the government to be responsible to ensure that any information provided would not affect the work being done there.
Paragraph 15(1)(b) says:
|| relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or considered for use as weapons or other defence equipment;
Again, we don't know what was in the piece that was requested, and the ATI officer at Foreign Affairs may have used this. I'm not sure if this is one of the clauses that affected the blacking out of the report, but it may have been. There may have been information that the Afghan government provided in the report that would have affected the safety and security, or the tactics or thinking, of our military personnel on the ground, who are doing very good work for us in Afghanistan, risking their lives. I would say there's a possibility that the ATI officer felt they might be at risk if information in this report were released. I don't know where this information was generated from; it could also have been from the Afghan government.
Paragraph 15(1)(c) says:
|| relating to the characteristics, capabilities, performance, potential, deployment, functions or role of any defence establishment, of any military force, unit or personnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
Again, this is clearly our responsibility, and I really don't think I can get arguments from the other side that Canada does not have a responsibility to make sure that information provided to the public does not injure our role, our performance, our capabilities on the ground in Afghanistan when we are doing the work we're doing there, in providing a military presence that allows for the development and the growth of the humanitarian side of our mission. The other piece of this one is that we've done a very good job in helping to provide Afghanistan a democratic elected government for the first time in many, many decades. We want to make sure, and I think it's the responsibility of government under the “International affairs and defence” piece, that this exemption is applied in this report. So I think this is a legitimate piece of legislation passed by this Parliament and enforced and upheld by the members of this Parliament. The individual doing the work on this may have used this clause to black out some of the areas.
Paragraph 15(1)(c) says:
||obtained or prepared for the purpose of intelligence relating to
||(i) the defence of Canada or any state allied or associated with Canada, or
|| (ii) the detection, prevention or suppression of subversive or hostile activities.
Of course, this report is up for debate in terms of bringing it back to see whether there were any violations of the Access to Information Act. This is another area where clearly we have Afghanistan as an allied state. That information in there could have been provided by Afghanistan. It could have been detrimental to the work Afghanistan is trying to do on the humanitarian side and on the democratic development and good governance. My guess is that the person may have used this section of the act to provide the safeguard to that country and may use that part of the act to look at the wording in the report that wouldn't meet the criteria set out in this exemption.
Then we have paragraph 15(1)(e), Mr. Chairman. It says:
||(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
Now, clearly you'd have to say that this may be an area where the blacked-out area may apply, but we don't really know that for sure because we're guessing. There had been a request for information obviously asking for documentation. This is the document that was sent to them and it was blacked out in certain areas. That has been appealed--that is my understanding--so we really should be waiting to hear from the Information Commissioner on whether that area does apply or not.
And just a reminder that the Information Commissioner has full access. Their staff has full access. We do not have full access to the report. The report that was sent out on the ATI request is not legal. It's not full access for us. We will have to rely on the word of the commissioner on this--the access to information commissioner--but of course this motion doesn't allow the access to information commissioner to do their work first before they report back to us on exactly what was right or wrong. It may all be right. We have no idea because we have no information on it. We have no report from a third party, an independent organization, which we have faith in.
In fact, I recall our voting for the new Information Commissioner in a unanimous vote, with lots of praise around the table. So I think in this particular case especially, because it's his first political issue, we should be looking at what they do with it and evaluating how that is handled. This motion that's in front of us today preempts the ability of the access to information commissioner to do their work, and I'm guessing it will not be very fruitful for this committee because they will not be able to comment until they have done their work, which is the appropriate--
Mr. Mike Wallace:
Thank you, Mr. Chairman.
Paragraph 15(1)(h) of the act reads:
||that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad;
I am guessing that the piece of information, or some of the information, in the report, Good Governance, Democratic Development and Human Rights, was likely done via correspondence. That correspondence was either provided by Government of Canada officials who are on the ground, or it could have been provided by Afghan officials to Canada, and it was built into this report.
So, clearly, if the communications come from diplomatic correspondence or from exchanges with foreign countries, such as Afghanistan, and if these are believed to have a detrimental effect, based on what I have read, they have the right to black those out and to bring them back to the individual who made the ATI request.
Now, I don't know this for sure, because we haven't seen the report. As for anything reported in the Globe and Mail, I don't know if anybody knows how accurate that is, because the report hasn't been made public.
So we should be dealing with the real documents, not other stuff that people have put together. But we don't know what's in there, because we haven't had the right to see it. I have agreed with that position. Others haven't, and they have appealed that to the Information Commissioner, and he will make a decision. But we won't know that decision because we're moving ahead quickly before they have a chance to discuss the issue and do the proper investigation.
Paragraph 15(1)(i) reads:
||relating to the communications or cryptographic systems of Canada or foreign states used
||(i) for the conduct of international affairs,
||(ii) for the defence of Canada or any state allied or associated with Canada, or
||(iii) in relation to the detection, prevention or suppression of subversive or hostile activities.
Now, I'm not sure what's in there, but when we see it, it may have been in relation to the suppression of subversive activities. There could have been something in there about that. That is why the ATI person from this department who, in my uneducated understanding, has years and years and years of experience on this topic, and probably is very, very busy, because of all the work that's done—which doesn't mean you don't do good work.... My view, Mr. Chairman, is that busy people often do high-quality work, because they're used to the topic and become familiar with all of the issues surrounding it. I'm thinking that in this case, that is a clear possibility.
The act also...because it's not necessarily clear to everyone.... And I'm sorry that I'm only speaking English today, but that is my ability, and I am trying to learn French—and all I can say about it is that it is “going”.
Anyway, there is a definition subsection, so that people understand the definitions. Subsection 15(2) reads:
||“defence of Canada or any state allied or associated with Canada” includes the efforts of Canada and of foreign states toward the detection, prevention or suppression of activities of any foreign state directed toward actual or potential attack or other acts of aggression against Canada or any state allied or associated with Canada;
So we clearly identify what an allied state is, and obviously Afghanistan is an allied state of Canada.
There is no question of any person looking at the ATI request and saying Afghanistan is not an allied state and that the report should not be viewed in that manner. Obviously with the military and humanitarian support we'll provide until 2009, and which this parliament had agreed to under the Liberal government, I think it's clear that we have been there a while—about five or six years now—and that we're doing great work, both military and humanitarian, and that this is part of the defence of Canada. So it meets the definition set out in the act.
Now, “subversive or hostile activities”.... Some people's definition of that might be different, but it's clear in the act what the definition is. It reads:
||espionage against Canada or any state allied or associated
So it doesn't even have to be a spy here in Canada, or a spy about Canada. If somebody is in Canada spying on a foreign country, say, Afghanistan, or the United States, or one of our other allies--Britain, Australia--we have the right, based on the act, with the access to information, with the exemption that's provided under “International affairs and defence” under the “Definitions” portion.... We can prevent others from getting that information, if it's been provided by other governments or by our government, that may affect the activities that may constitute espionage, that may affect not only Canada but also other countries. And that's clearly set out in the definitions.
That may have been a part of this person's thinking pattern and decision-making when it came to deciding which parts would be released under the ATI request or not.
The second part is “sabotage”. Now, in this case we're talking about a report entitled Afghanistan 2006: Good Governance, Democratic Development and Human Rights. I don't know what's in the report because of course I haven't seen it in its entirety, but sabotage, obviously, is an important issue that could have been part of the decision-making. Based on the information that's in this report, that it was designed for the government to review and to make policy decisions that help prevent sabotage, not only in Afghanistan but also here in Canada, it is inappropriate, and obviously set out in the legislation...that's a possibility for why the ATI individual in the Department of Foreign Affairs may have decided that some of that information, knowing how it was provided, was not publicly available at this particular time.
Paragraph 15(2)(c) says:
||activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
Obviously under the previous administration, under the Liberal government, we had the very tragic events of 9/11. Security, obviously, became an important issue of the day, and continues to be a very important issue for Canada and for other free nations around the world. Hijacking is actually mentioned. Terrorist acts are clearly indicated as a potential reason--a part of the definition of “subversive or hostile activities”--and these issues are clearly defined in the act, under the “Definitions” section. The information that was included in this report, that we're asking to have reviewed and seeing here before the Information Commissioner has a look at it...could easily have had information that would either have affected or had information regarding terrorist acts or hijackings, or any other events, not just against Canada...but also the possibility of it happening in foreign states, and of course that could be Afghanistan.
Paragraph 15(2)(d) reads:
||activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
So obviously under the definition of “hostile activities”, there could have been issues to deal with criminal activity that had been taking place or may have been taking place, or with the prevention of criminal activity. But if, in the opinion of the person in the ATI office, the information, whatever the report says, actually made it to the public, made it to the newspapers, and maybe made it to those who were trying to overcome in Afghanistan, and they were able to use that information to promote criminal activity, to promote violence, to use force, that information would be inappropriate to be in the public domain.
That could be a reason why it's there. But we won't know, Mr. Chairman, because we have a motion in front of us to deal with this urgently, prior to the Information Commissioner and his staff doing the work, seeing the information that's there and applying the criteria.
I'm just on the “Definitions” part of section 15. There are a number of other acts, 13 in total, where this could have made a difference--
Mr. Mike Wallace:
I don't have that one in front of me right now, but it might be in my pile. I'll certainly get there sometime today.
The next part of the “Definitions”, paragraph 15(2)(e), reads:
||activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada
So if you were confused about what is meant by the gathering of intelligence information, this definition clearly sets that out in the act, an act that has been around since 1983, I believe. But these exemptions clearly indicate to anybody who's in an ATI role in any department—and of course we're dealing with someone from Foreign Affairs. This act doesn't just apply to Foreign Affairs, but to every department across the government. And there are ATI individuals in every department who go through these requests for information and, for the most part, I think, provide the information on the most timely basis possible.
There are issues, which we have heard about, where it takes time, and more time than we would maybe like. I make no apologies that when it comes to the protection of Canada and our allies, they look at the exemption portion of the responsibilities of government and look at where these go.
So under “Definitions”, when it's about information used for intelligence, I'm not sure what information was in this report on good governance and democratic development and human rights, but it could be used against Canada or Afghanistan, because of the information in it. We won't know that, because we haven't seen the report. The report sent to the public was blacked out. Maybe it was blacked out for the right reasons, but, again, we don't know that, because the Information Commissioner has not ruled on it. And he hasn't ruled on that, even though my motion would have allowed him, or his office, to rule on that. My motion would have allowed us to call him and ask him what he was doing, what information was in there on this particular item that should or should not have been blacked out. Then we'd have something to work on.
Otherwise, I'm not sure where we're going with this motion, because the motion says we should deal with it urgently, and we may not have any information. If we deal with it next week, are we then done with it if they come and say to us, well, we're not available or not able to provide the information because it is under investigation? So our urgency may not be their urgency. But my guess is that they understand the political importance of this document and will be working on this to make sure it is done appropriately.
Paragraph 15(2)(f) reads:
||activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.
This is a very important piece, in my mind. The paragraph talks about activities directed toward threatening the safety of Canadians, and we don't just mean Canadians here at home or the Canadians we have in the field in Afghanistan doing military work, who are actually Government of Canada employees. I would just remind members of committee that our fine men and women who are in our uniform representing our country and doing very dangerous, very tough, very important work for us in Afghanistan are Government of Canada employees. We have to do what we can to make sure their activities and safety are not threatened by any information that could be gleaned from a complete release of the report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights.
Now, it may or may not have that information in there. We don't know that; we will not know that. I heard earlier, as brought up by my colleague, that there might be an unblacked-out report that somebody thinks they have and that was provided in the ATI access piece. I'm not sure how legal it is to have that document. And I'm not a lawyer, so I'm not going to comment on that, because you wouldn't want me to comment on the legality of these pieces.
But my view is that, as a committee, we should be looking at what was legally obtained and not encouraging people to get illegal government documentation, or any type of documentation garnered illegally, and treating it as evidence. That's like saying that if somebody breaks into another company and they're here about theft of their information, about identity theft—which we were dealing with earlier today.... If they got the information, but they had to break in to get it, and stole it, I think we should not be ruling that as something we would consider. I think that goes far beyond our obligations and our responsibilities to uphold the law. If somebody obtains something illegally, it should be deemed inadmissible here in this jurisdiction. I would caution anybody who brings anything forward that has an illegally obtained piece of information, that this may expose them to others getting involved--maybe those who uphold the law, from a criminal perspective, getting involved--and not us.
There are a number of reports, Mr. Chairman, that are referenced. So if you wanted to know where the government of the day, and then supported by the House of Commons, got that information, there were court decisions from 2002, decisions not involving the Information Commissioner.
In 2002 there was a report on section 15, on “International affairs and defence”. This report was done before we were in government and dealt with the exemption issues that are here in this piece, and we're supporting why those exemptions are in here.
There was another report about it, an index of case studies, case summaries, that had happened between 1994 and 2002, again, when the legislation was introduced and passed. Then the previous Liberal folks were in charge, I would say. They were the government.
Here's a number of case studies that they looked at, again, to help support these exemptions that are in this first piece, number 15.
That's available to the committee to help you make a decision on whether this blacking-out piece was done appropriately. I don't know if we're ever going to make that decision here. That's not really our role. I think that's the role of the Information Commissioner and the courts, if required.
In 2001-02 there was the Imperial Consultants of Canada Ltd. v. Canada case. This wasn't a Foreign Affairs issue. This was a Ministry of Citizenship and Immigration.... Foreign Affairs, of course, is usually involved in these topics, but this case specifically dealt with the exemption rulings in section 15 and basically supports what's in there.
In 2001-02, the Department of Foreign Affairs and International Trade did a report. Again, that was under the Liberal government. In 2001-02, the “Performance Negatives”...“Antiterrorism and Secrecy”.... So there was a report done to show where we were going in terms of legislation and how the access to information legislation was working, particularly with the exemptions, and particularly on the “International affairs and defence” piece in section 15.
In 2000-01, there was a report done for disclosing e-mail addresses, which really may have had an influence on international affairs and defence because those e-mail addresses may be able to be used for other purposes.
In 2000-01, “Reform of Cabinet Confidences”, they actually looked at what constitutes a cabinet confidence and how it relates to the information act, particularly with the exemptions to international affairs. Again, it supports what's in this section.
In 2000-01, section 15, “International affairs and national defence”, another report. There have been two other court cases, not involving the actual commissioner, in 1999-2000 and in 1998-99.
So for this particular section, section 15, I've read you each paragraph, which I know you've taken in. I'm hoping this helps you understand at least that section on international affairs and defence, why it's important that we hear from the commissioner first, based on their review of what was available or not.
Of course, we did not and do not have any legally obtained report--the Good Governance, Democratic Development and Human Rights--and I haven't seen the blacked-out report piece, but we have some information here. The definitions are here...the backup reports of why this is important and why it's justified in the law. If this motion passes, we'll certainly call the Information Commissioner and see if he or the deputy commissioner will be able to shed any light on this. My guess is not, because it's in the process and we can't do anything about it.
There is another section about “Safety of individuals”. It's also under the “Exemptions”international area; it's under the “Responsibilities of government” area, which we take very seriously on this side of the House. We do have a responsibility to the people of Canada, to our people in the field in Afghanistan.
We have another section that talks about the safety of those individuals. It says:
||The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to threaten the safety of individuals.
I don't know how much clearer we can be than that. This document may, based on the view of the person responsible for this role in the department...whether they've made a decision that the safety of individuals will be an important piece in this act or in this documentation....
The issue is about Good Governance, Democratic Development and Human Rights. One section is about human rights, and we have to make sure that any information that is released doesn't affect human rights or that any information that might be disclosed doesn't threaten the safety of the individuals.
So we have a tremendous number of Canadians on the ground in Afghanistan who are working there every day. Does this information that may be in this report provide a security risk to them? I don't know, and we won't know till the commissioner of information rules on it. But if this passes, we're not sure what would happen with it.
So I'm opposed to the motion as it's presented because I am not sure it goes to protect the safety of individuals. And that's said for our Canadian people.
Clearly in the definitions of this act we also have an obligation and a responsibility to the people of Afghanistan, that they are also protected, based on the information we may have that may have been provided by their government and that may have formed part or all of this report. I don't know what part it forms; it may form no part of this report. But I'm guessing that we have had some consultation with them, since we're doing a review of what's going on in Afghanistan in 2006, and that they have provided us with information about the progress they're making from either a democratic point of view...how their government is operating, the social net they are starting to develop, the military aspects, the policing aspects of what they are doing.
So they have issues that they may have presented to us about the issue of policing, for example, which directly goes to the safety of individuals, not only of individuals who are on the ground, who are Canadian, but also of the individuals who are Afghan civilians. In particular, maybe there are some issues in there about the Afghan police and their development, and that could be a threat to the work they're doing and to their own personal safety if this information had been released.
Now, I don't know if it should have been released or not. We haven't seen the report. It's blacked out. Of course, the Information Commissioner has received a number of complaint applications on this, and he will rule on that. He and his office and his investigators will get to see the report, in whole, which we don't, or we shouldn't, and he will make a determination and get back to us. His responsibility is to the House of Commons, not to this committee, to get back to the House on whether more information could have been released. That could be a few sentences, it could be the whole thing, or it could be nothing, based on what I've been reading about our exemptions that have been put in the act, which the ATI person could have been using to make their decision.
At the end of the day this isn't done with a machine; this is done by individuals who have been involved in the organization and the act and the issues dealing with access to information for many, many years. My understanding is that it was not a new person who made these decisions but somebody who has been involved in this and has a clear understanding of what the responsibilities are.
The individual person makes the decision. Could they have been wrong? Absolutely, because I have been wrong once or twice before—
A voice: No!
Mr. Mike Wallace: It's true, and I normally deal with any item relating to me, and if corrective action needs to be taken, that's great. But it's not for us to do that. We can talk about the policy aspects of the exemptions. Do these need to apply? Do they need to be changed? Do the definitions need to be improved, whether in sections 15 or 17? The fact is we have the law in front of us and we don't have the position or ability to make that decision.
We have professional people whom we have asked to do an independent review of this. We have asked them to do it. People have asked them to do it; I didn't ask them to do it, but the individual requester did. After that is dealt with and the commissioner rules on it—and I do use the word “rules”, because that's what it is, as the commissioner gives his opinion.... And the commissioner told us previously that they can't compel a department to do something, but they work on that, and in the vast majority of cases it works. But I do have a list of 50 some items where it didn't work. Maybe we should review what the differences were under the Liberal regime, where they refused to make the change the commissioner offered. Maybe they had good reasons, but they had to go to court over it, and they lost. So we should look at that in the future, I think. So I'll be thinking about that and pursuing that.
We don't have the answers that we have on this section. Now, this section hasn't gone by without its own review. And let me tell you about reports. They're all 2002 or older, so it's not as if the Conservative Government of Canada, the new government of Canada, has made some major change to this. We are doing what the law sets out, the law that we haven't changed, the law that we are working on with these issues. The exemptions I'm talking about have to do with the responsibility of government. I've talked about the importance of our relationships in Foreign Affairs and that the exemption applies to international affairs and defence.
The exemption I'm talking about now deals with the safety of individuals, and it makes sense that we have the ability to protect people, both our people and our allies, with the information they may have provided us in confidence. Could you imagine if Canada provided another country with information in confidence, so they could make a policy or a diplomatic decision to work with us—whether they wanted to come to Afghanistan and be part of that major effort we have, both from a humanitarian and military point of view—but that information was released in the country and put that government, which should have been making an informed decision, on the hot seat, because the local press in that country was making something of the information they had?
Decisions need to be made on information. We all make decisions on information. Some of that information is confidential, and this country provides confidential information to other countries about Canada, about their country, and other countries we may be dealing with, that will help protect the safety of individuals and international affairs and defence—and those are just two parts of the act.
But of the reports I want to reference, there is one from 2002 that includes a section...it's Strong Medicine For Delays. That report, I think, would tell you that the issue of protecting the safety of individuals is very, very important, and that any delay in that could be detrimental to those individuals. So I would recommend you read this report, and it supports the exemption in the act.
There was also a report in 2002 about the safety of individuals, or section 17 of the act, a specific report making sure the exemption we have put in the act does what it's intended to do in terms of protecting Canadians, not only at home but also abroad, and our allies around the world.
Again, this isn't done in isolation. There are a number of reports here, Mr. Chairman. A bunch of case studies have been done, and there are case summaries that can be...and these cases happened from 1994 to 2002.
The report I referenced earlier, the Imperial Consultants Canada Ltd. v. Canada (Minister of Citizenship and Immigration), dealt with the issue of the safety of individuals. It was supportive of the responsibilities of the government. It was supportive of this exemption that exists in this piece of legislation that has been developed and that has been supported by the vast majority of parliamentarians over the last couple of decades.
There is also the report, which I referred to before, that was done under the Liberal regime, in terms of reform of cabinet confidence. It upholds the exemption piece on the safety of individuals and that this is an appropriate exemption in the act for the responsibilities of government. There is a section there; it's listed in the act.
If you want some of this information, you can get it right off the Internet. It is available to everybody to read, not just to us, as parliamentarians, of course, but to all Canadians. In fact, with the use of the Internet now, basically the whole world can look at this.
In 2001 there was a report, Strong Medicine for Delays, which I mentioned, but there's another section in there that you should be looking at.
There's an important one in 1999-2000, Fear of Retribution, which is another very important piece to look at. It was reviewed with the concept that the safety of individuals should have an exemption in the Access to Information Act that would help protect individuals from the fear of retribution.
And who knows? I don't know. You don't know whether any of the information in the report that's entitled Afghanistan 2006: Good Governance, Democratic Development and Human Rights, which is what we're debating here today, in terms of its release, in terms of its blacked-out form, would have been detrimental to somebody's safety, both Canadian or non-Canadian, in Afghanistan or at home here. Would there have been a fear of retribution if that information got out? I don't know what that form of retribution might be. It might have been a prison term. Hopefully, it would not be, but it could have been violence of some sort. It could have been loss of a job. I don't know what that retribution would entail.
Of course, we don't know that. We shouldn't know that, as the report has been sent to the Information Commissioner to rule on what other areas can be released. And we should be waiting for that decision to be made. I have full faith in the commissioner that this committee unanimously supported that they would make good decisions.
And we quoted...and Madame Lavallée was mad at me for quoting from it. He wrote a book on House procedure--he and his partner. We have a lot of faith in that book.
An hon. member: Marleau and Montpetit. It's right here. It's a great book.
Mr. Mike Wallace: And we should continue to have faith in this individual making an appropriate decision on that.
So those are two areas that I'd like to talk about.
I have one final spot, if I have time, Mr. Chair.
The Chair: You can have all the time you want.
Mr. Mike Wallace: Merci beaucoup.
The exemption is in section 21. Again, it's under “Operations of Government”. It's not something the Conservatives brought in. It's a part of the act that all ATI employees of this government--and previous governments--use to decide whether the information should be released or whether it does really affect the operation of government.
That's a tough decision, because I believe we do need to look at the access to information piece—and I've spoken to my colleague from the New Democratic Party on this outside the committee room, and I was actually quoted in the press earlier on—to make sure that people get the information that they are rightly entitled to, and in a timely manner.
But “rightly entitled to” doesn't mean the government of the day should be required to provide information that was provided in confidence or that would be damaging to the operations of government. And operations of government doesn't mean buying pencils and booking rooms and going to meetings; operations of government also has to do with our military and where we're going with our military.
Could you imagine if part of a report that was released gave our enemy in Afghanistan information on what our next move was going to be, in terms of where we were going to be on the road and which area we were going to go after next in terms of rooting out Taliban? Could you imagine what that information would do in terms of their ability to determine where to ambush our own men and women?
You can't just think in terms of the narrow definition of this, because “operations” sound as if they are the day-to-day workings of government in terms of its administrative operations. These go far, far beyond that, and you need to know when information should be released and when it should not.
Based on that, over the years—and rightfully so, I would say—budgets have been kept secret until they're announced, so that nobody in this country or other countries profits from decisions that may have been made and are going to be announced at a certain time on a certain date. That is the operation of government. Can you imagine what it would do to the markets if we didn't have that, and things like those could be released? People would get rich off them. It would be an unfair advantage to those who would get these things. That's why, when you think about the operations of government, you have to think of not just some of the minor things, the day-to-day business of operating this place, but also of the actual documentation or information that would be available if this exemption did not exist.
For example, under the heading “Advice, etc.”, in subsection 21(1), the act says:
||The head of a government institution may refuse to disclose any record requested under this Act that contains
||(a) advice or recommendations developed by or for a government institution or a minister of the Crown.
I would be surprised if anybody could argue with that. First of all, they may think they're never going to form government; that's a possibility. But those of us who think that someday we will be a government, or are in government, believe there should be an opportunity for a minister of the Crown to be getting confidential advice on different topics, whether economic, environmental, or military—just to pick some big ones. So the advice they get from their staff, and from the individuals who have expertise in the area and who don't necessarily want to be identified with that advice, should be protected with the exemption rule under the heading of “Advice”.
Now, there might have been advice in this document that went to the minister. I don't know that. It did go to the foreign affairs department. I don't know what advice was in there. It may not be a section that the ATI employee used, but it's a possibility. We won't know that, of course, because we won't get a chance. If we call these witnesses, my guess is that because this matter is before the Information Commissioner, they won't be able to comment on this to any extent that will make us any more knowledgeable about the issue than we are now.
But advice is important. Recommendations are important, and they are included in the exemption. Look, on our side and on your side, we give recommendations to ministers. I know I have; I've done it verbally and in writing. That might be public information, and it might not, if it deals with issues of national security or other issues. I haven't provided any of those types of information. In fact, if anybody asked me, I'd be happy to provide what recommendations I have made to ministers.
But there is a sense that a minister of the Crown or a government institution—including, to my understanding, other departments, not just ministries—may have crucial information they don't want to release.
I'll give you a wild example. What if, Mr. Chair, all information was available, if the timing of prison guard changes, how the place is laid out, and the security system that's provided at a prison was public information? That, I don't think, is a good operation of government. I don't think it's a good choice that we allow that to be out there, and that others may use it for the wrong reason, and not just empirical reasons or interest reasons.
In paragraph 21(1)(b) it reads:
||an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown
So this exemption to the access to information if a deputy minister or a senior minister in an office or a senior officer of a crown corporation or other organizations provides information or advice, either in writing or verbally—but obviously we're talking in writing because I don't think you can do it verbally—on a particular public policy issue, something that needs to be done to help protect Canadians to do something positive for the environment, to do something that would affect the financial markets for the day, that you cannot in good conscience say that that needs to be public information...that ATI officer in that department has the ability and the right and the knowledge to be able to say this is included in the exemption and it should be exempted because it can injure not Canada, individuals....
I've been using a number of examples, but another great example is the department for public safety. There may be names, there may be all kinds of issues that the minister gets briefed on by his senior officials on security issues for this country. Could you imagine if we didn't have this exemption and those were all public documents?
Mr. Mike Wallace:
No, I only move forward, sir.
I haven't dealt with paragraph 21(1)(c), which may have been part of the report on good governance, democratic development and human rights and is referred to in this motion by Madame Lavallée. I don't know if it's in there or not, but let's talk about this paragraph for a moment. It reads:
||positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Canada and considerations relating thereto
Now this clearly states that if there's any advice dealing with negotiations with the Government of Canada, the government has the right, under the section on advice and the exemptions for the operations of government, to black it out. We don't know if that's the case, because we haven't seen the report. But let's just look at the title of the report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights. I think it's possible that this report may include positions and plans that were developed to help us negotiate with the Afghan government. We don't know that, but clearly, the advice that was provided may have been in writing, both from the other departments.... It could have been from Foreign Affairs and it could have been from the Afghan government. And the advice was maybe then turned into part of the report.
What the act says is that the access to information officer who was assigned to this department has the right, and not just the right but the responsibility, to look at the advice that was given under the operations of government exemption and to black that out so that the public doesn't get it.
The downside, Mr. Chair, is that if this information is released—not just in this report but in any report—who then is going to provide advice to the minister? If you're at risk of saying some very strong things about another government, for example, or an individual department, or a policy or a program the government has, why would anybody want to give advice, particularly in writing, if there's a major risk of it being released to the public before anything is done with it?
What if we were negotiating with another country, or what if a government organization were negotiating with another government organization? Maybe we're negotiating for property. Maybe we're negotiating about getting our people out of a hot military situation. Maybe we're negotiating to go to Darfur with the UN. Maybe we're doing that—maybe—and the minister gets advice on that, but it's in writing and it's from the UN, Sudan, and our allies. But, no, it's not protected, because it's not under an exemption. But it is under an exemption. And this advice that could have come may have been in this report. That may be why the access to information officer blacked it out and made sure that the public and Canadians and our allies were protected from any breach of this.
In fact, if we didn't have this clause in here, for negotiations carried on by or on behalf of the Government of Canada, there'd be very little diplomatic discussion between our countries on moving some agendas forward. It would all be social. We'd have nice social relationships with everybody, which is a good thing--don't get me wrong, we need that part. We need to develop those relationships. But after those relationships are developed, even in our own business, in our own way of operating as members of Parliament, eventually you get down to brass tacks on whatever the issue is, and sometimes you agree and sometimes you don't agree. And if those things are in writing, sometimes they can be damaging not just to Canada but to the country that may have provided that information. And we need to protect that.
That's what this paragraph does. It protects ministries and other departments of the Government of Canada and advice that clearly affects the operations of government and is clearly exempted and clearly could be part of that report that we're debating at present.
Paragraph (d) reads:
||plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation.
Clearly, this could be part of the advice that's in Afghanistan 2006: Good Governance, Democratic Development and Human Rights. Mr. Chair, I haven't seen it, but if you put that title in front of me, my guess is that it probably has a lot to do with how things went in 2006. But my guess—and I haven't seen the report—is that it has the ability to say this is what happened in 2006, but this is what we should be doing in 2007, 2008, 2009. Here are the plans. Here's the framework for the plans to be developed, whether that is on humanitarian aid, what we're doing in terms of financial aid, personnel aid. Or it could deal with the military: plans on where we're going to be deployed, who our partners are going to be, who the partners should be, what we should negotiate on, where we should go with it.
So there are a number of issues in terms of plans that very clearly could have been a part of why this person blacked out that part of the report. I don't know if that part of the report is even in there, because I haven't seen that report. It's blacked out, and I think it would be illegal for me to have a copy of the non-blacked-out report because at present that is the position of the ATI committee.
The ATI officer in this case may have used this advice section and clearly believed that any plans or potential plans that could be derived from this shouldn't be released, but it would be released if this documentation wasn't blacked out.
I don't know about my colleagues, but I'm of the opinion that we continue to rely on the ATI experts who we have in these departments. This individual has been there for many years doing this same work, day in and day out.
And we're inspecting....
Can I have a little quiet?
Mr. Mike Wallace:
Thank you, Mr. Chairman.
I was just providing information to the committee on subsection 21(1) on the advice part of operations of government. I just want to be clear, there are paragraphs (a), (b), (c), and (d), and at the end of that, if you take those out, it reads:
||if the record came into existence less than twenty years prior to the request.
If you put that with the first part, they read:
||The head of a government institution may refuse to disclose any record requested under this Act that contains
--and then it goes into what it may contain, then--
||if the record came into existence less than 20 years prior
I know some academics and some individuals would say there's no way the government can always, forever, hold the information. Well, the act itself says that after 20 years that information, that advice, because this is in the advice section...they're likely not in government any more, they're a different body, different names of people, and this part may not apply to that. There may be other areas in terms of national security and so on that may apply.
In this section, in terms of advice, because that's what we're talking about, any advice in writing to a minister within 20 years that meets the criteria that was set out in paragraphs (a), (b), (c), and (d) is protected. The access to information officer who is in this department had the ability to make a determination based on seeing the report in its full context that it may be blacked out based on one of those criteria...“may be” because we haven't seen it, based on the advice, and that's completely legal.
In 20 years from now, if the report, Afghanistan 2006: Good Governance, Democratic Development and Human Rights, is still of interest to people, to see that report and what advice may or may not have been in there, then after 20 years, likely they would, in this particular section, be allowed to see it. But at present, based on what's written in front of us and what the law is, the law that came in and was fully supported by the House and has done a pretty good job for Canada over the last couple of decades....
There is an exercise of discretionary power in this. Subsection (2) reads:
||Subsection (1) does not apply in respect of a record that contains
||(a) an account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person;
So this exercise of discretionary power obviously is not black and white, and there is a potential because you can't list absolutely everything in terms of what constitutes advice, what doesn't, how it affects other areas...you just cannot physically list it out. There is an opportunity, which I think is part of the exemption, to exercise a discretionary power function. Where the account or statement or reasons for a decision that is made in exercise of discretionary power affects the rights of a person, that part of the legislation may be able to be released.
That's a section that, again, the ATI person, particularly in this case, would be very familiar with, having been in the business focusing on this probably for a number of years, based on the fact that it's in Foreign Affairs and we would have people who would have been there.
My guess, Mr. Chairman, is that if you really look at it at that level, the chances of it being a change from one government to another is pretty slim.
We'll probably be looking for consistency in that function from the Office of the Information Commissioner and that department to make sure that the protections that have been provided in the past for our allies, for the advice to ministers, for our negotiations with foreign countries, for our international obligations, and for our safety and security....
My guess is it's pretty consistent that the person who may have made these decisions may have been in this department for many years. That person has been using the exact same criteria for many years to determine whether it fit into any of these exemptions pieces.
There's also an exercise of discretionary power:
||a report prepared by a consultant or an adviser who was not, at the time the report was prepared, an officer or employee of a government institution or a member of the staff of a minister of the Crown.
So there are some exemptions here to allow for some discretion, based on what the report says or what the advice is, in terms of its detrimental effect to the operations of government. It provides some security for those who are on the outside as consultants or advisors, but not for an employee of government at the time, or for an employee of the minister when the report was prepared.
That also helps protect them in this section, and this wasn't done on its own. It's been tested numerous times, Mr. Chair.
There are references in this area of this report that you could look at. There are reports to refer to, and in 2002, again long before we were in government, there's item (i)(g) in that report—
A voice: Tell us about item (i)(g).
Mr. Mike Wallace: —that talks about splitting protection of cabinet confidences. My understanding is that this talks about the role of cabinet confidences, where you draw the line when somebody's giving you advice, and where it can and can't be released.
Basically, this report, under the Liberal administration, supports what's in front of us here, in terms of the operation of the government and advice to the minister—or it doesn't have to be to the minister. Again, I would let you know that it could be advice to other departments. I'm not sure if it covers crown corporations, so I'm not sure if it applies to advice to the Canada Post Corporation, for example, to Ms. Greene or someone such as her. They are separate from the operations of good government, but this would be something that as a committee, when we're looking at the access to information piece, we could explore.
There's another report, which I mentioned in another section, that also applies here, Strong Medicine for Delays. It's important in this case, and in all cases, that the advice ministers get is provided in a timely manner, because they're often making decisions that need to be made fairly quickly, and so on.
In the Afghanistan 2006: Good Governance, Democratic Development and Human Rights report, which is referenced in this motion, we're not sure what it would have done in terms of the delay on any decisions that had to be made, particularly based on the advice that was given. Again, the title indicates that it may have been a review of what happened in 2006, but I'm pretty sure it would also give advice on what should happen in 2007, and further on.
So any delay in that could have been very damaging to the country, to our military people, and to our humanitarian folks on the ground in Afghanistan, who are doing great work for us.
I would encourage members of the committee to look at that report to see why it's important to this section, and it's important that we wait until we hear from the commissioner on this particular item before we proceed.
These are the kinds of things....
Oh, Sukh, you're leaving us. I'm sorry.
An hon. member: How could you?
Mr. Mike Wallace:
Thank you very much.
There's another report here that's new and wasn't listed elsewhere. In 1998-99, how was the choice made? My understanding of this report is that it talks about how the person was able to make the choice, based on advice provided. It talks about the importance and relevance of confidentiality to the minister on certain topics—of course not on everything—to help him or her make the right choice for Canada and present that.
The issue in this case is the Afghanistan report that is up for discussion and referenced in this motion. It may or may not have information or advice that would affect the choices of the Minister of Foreign Affairs. It's not just the minister; often deputy ministers and other senior people look at these reports, study them, understand what the issues are, and then make advice based on this report to the minister. I haven't been a minister, but that is my understanding of where things go.
Mr. Rick Dykstra: You should be.
Mr. Mike Wallace: The other issue is that a number of cases were completed--I'm not going to talk about them--back in 1998-99.
There's another report I referred to on the exercise of discretion, which I think is important in this area. Your definition of who gives the advice, when they give it, and whether it's protected or not is an important one. There is a report from 1998-99, Outsiders vs. Insiders. It really discusses the issue of whether a consultant provided the information or not.
I don't know where the information came from and who provided the information in the Afghanistan 2006: Good Governance, Democratic Development and Human Rights report, but it could have come from people who are not government officials. It could have come from NGOs or a number of areas. This is in Foreign Affairs and not National Defence or any other area, so we could have looked for the NGOs to provide us with their opinions. They're not really employees of the corporation, but their advice is very important to us.
We may have used the exercise of discretionary power to say, “You're right.” The ATI officer could say, “You're right, this isn't from the government, but these people gave us information in confidence so we could do good public policy and assist them, and that's why we've blacked it out.” We don't know that because we haven't seen the report, of course. I'm waiting patiently for the Information Commissioner to report on that--and I think we all should be.
Those are some of the reports that are in here. We've had some examples of the piece.
It has been mentioned that this report was made public or was available. I think a previous speaker said it was in the Globe and Mail. There's an assumption being made that the report in the public was the actual report that was blacked out, but we don't know that for sure. Another member has mentioned that the complete report was received by somebody in the academic world. We don't know for sure whether that was even the report that was requested.
As you know, only the requester of the information, the ATI report—and I think there have been a few—once they get a copy of what's been returned to them, can appeal that if they're not happy with it. In this case, for the report on Afghanistan, my understanding is that there have been appeals from people because they were not happy with what was provided to them.
But how are we going to be privy to the actual document? If we are not, as a committee, a requester, how can we have any authority to look at the unblacked-out area? So I have some concerns about where we're going with this motion. I don't think we actually have the right information in front of us. I think the act that we have in front of us clearly indicates to us that there are exemptions, clearly defined and stated in the act, and I only read three of them. There are more of them; there are 13 exemptions in the act.
An hon. member: Wow.
Mr. Mike Wallace: Would you like me to read them? I could.
I want to say that when we had the commissioner here, I think it was maybe Mr. Martin who was asking him questions about whether there was any need to black things out and what the purpose of that would be. The deputy commissioner who was here, with the authority to answer the questions, because he has longer experience, said there were 13. And he listed some of the areas where you can legitimately and appropriately, I would say, tell the requester that that information is just not available. We don't have that information in front of us. We should be waiting until the commissioner does the work so we know what is available and what is not.
It was also indicated to me, as I've done some investigation of this, that things often get appealed and resolved— and it doesn't mean that the whole document gets revealed. It means there might be a sentence, or two or three, or a word in a sentence that gets revealed, or a couple of sentences, or a paragraph, and maybe, because the person is human, the ATI person in Foreign Affairs, in this case, may or may not have made any errors in what was put forward. But that is not this committee's determination. I think we should be waiting to deal with that.
One final thing, Mr. Chairman, and then I'll have to relieve the floor. I know everybody is upset. We got a letter—
An hon. member: Say it ain't so, Mike.
Mr. Mike Wallace: You got a letter, Mr. Chairman, as chair of the committee, from the Information Commissioner via legal services. We had been slightly misled—and I just want to make sure people have it.
A voice: Oh, oh!
Mr. Mike Wallace: No, no, it's fair. I really appreciate him bringing it forward. It was brought to my attention that the statistics with respect to the number of cases the Crown referred to the commission was inaccurate; the exact number of applications initiated by the Crown challenging jurisdictional issue against the Information Commissioner was 51. So there were three cases where the Attorney General of Canada was successful, and 94% of the cases were not. That means the Information Commissioner won.
I think we should be taking advantage of this. They mention here how they measure their success. They are taking an ombudsman role. They are specialized and have the knowledge and the expertise. This motion does not take advantage of that.
This motion tries to bring that forward, and I think we should only be looking at this after he's done a report. Then, in addition to that, we should be looking, in my view, at what went wrong with the other 48 cases brought forward and that the government of the day—a Liberal government—lost against the commissioner. Then if there are changes that need to be recommended, based on the culmination of that information, and if there's a theme that runs through it, let's do that.
But this motion in front of us, Mr. Chair, talks about urgency and about violations. I don't believe this is an urgent matter. I believe it implies there are violations. I think we should wait to hear the commissioner, and I would appreciate the mover of this motion deferring the motion until we hear from the Information Commissioner on this topic, on whether his office is even able to appear on this while they have an active file in front of them.
Thank you for your time.
Some hon. members: Hear, hear!
Mr. Mike Wallace: How long was I?
Mr. David Tilson:
Thank you, Mr. Chairman.
I have not seen this report, and it is my understanding that Mr. Wallace has not seen the report. Maybe other members of this committee have seen the report. If they had, I'm sure that fact would have arisen. So the motion is talking about studying a report that no one has seen.
There has been reference to one of the local newspapers. There was an article, which we've all seen, on the front page, and there was a section that was blacked out and another section on another page that wasn't blacked out. I don't know whether that's the report. I don't know whether the blacked-out portion is this report. I don't know whether the portion that's not blacked out is this report. I don't even know whether that newspaper has the report. So that seems to be one of the things we're relying on.
Mr. Martin, I believe, referred to a report that some professor had. I don't know what that report is. I don't know whether that's the report in the motion.
So again, I submit an issue that I raised in a point of order, and which you ruled out of order. Again, I don't agree with you, but I respect what you've said. You encouraged me to talk about that if I wanted to in debate, which is what I'm doing now. That issue is which report the committee is going to study.
Presumably, the committee is going to have to go and ask the minister--a minister--for the very report that has been acknowledged by the Information Commissioner as being before the Information Commission in a study. I don't know the status of that report. None of us does. Nor do we know whether portions have been blacked out or whether the whole thing has been blacked out.
Mr. Wallace has spent a great deal of time going through, I think it was, section 15, indicating why you could conceivably black out certain areas. Presumably, the Information Commissioner is proceeding with that.
Mr. Chairman, the point I'm making with this discussion is that our study could conceivably be frustrated. We will not be doing the report that we set out to do, because it is being done in a more thorough fashion by the Information Commissioner .
Then, of course, you get to the issue of the Information Commissioner's making a decision that conceivably could be appealed to the court. If we make a decision that someone doesn't like--the Liberal Party, the Bloc Quebecois, the NDP, the Conservative Party, an individual, the Minister of Foreign Affairs, someone over in Afghanistan--looking at the rules of national justice, they have no recourse. It could be anyone who doesn't agree with the report. Well, perhaps it wouldn't apply to the people of Afghanistan, but it would certainly apply to Canadian citizens.
They do have recourse--with respect to a decision that has been made by the Information Commissioner--to the Federal Court. That doesn't exist in this report. We're causing a bit of a problem.
We're going to look at all the issues. We're going to look at the issues that, it has been suggested, occurred in this government, the Conservative government. We're going to be looking at issues in the former Liberal government, which have been referred to. They may be relevant or they may not be relevant, but we're certainly going to look at them.
We're going to be looking at the issues with respect to the Toronto newspaper that made a report and whether that person or persons violated the provisions—because that's what the resolution says—of the Access to Information Act. Were they revealing secrets that, under the Access to Information Act, they shouldn't reveal?
All of these things make it very difficult, Mr. Chairman, to proceed with this motion, and that is one reason I don't believe we should proceed. When you look at the motion, I honestly believe it should be dealt with by another committee, with respect to matters that should go beyond the Access to Information Act. We are certainly going to go into it. We're going to go into matters of security. We're going to go into matters that have nothing to do with this committee.
I believe this whole motion is beyond the jurisdiction of this committee. I mentioned in my point of order that there are legal proceedings going on in British Columbia with respect to an interim injunction that would prohibit the transfer by Canadian Forces of detainees in Afghanistan. As I submitted in my point of order, I believe it would be inappropriate for the committee to proceed with this matter, because there's an ongoing legal matter that's before the court.
In our deliberations, our examining of witnesses, and our submissions, we could inadvertently prejudice those proceedings. I know they were introduced last week. I don't know whether they have been heard, but there certainly would be a timeframe for appeal one way or the other. It would be most irresponsible for this committee to prejudice matters that are before the court.
Finally, it's kind of ironic that we were dealing with the issue of identity until this big brouhaha occurred, because that's how all this happened. This happened because there was something in the Toronto newspapers that I don't think someone got legally. Maybe they did. They'll have to come to tell us whether they got it legally. They may have broken the law.
I'm not going to refer to the sections that Mr. Wallace referred to. I'm just going to refer to section 64 of the legislation, which says:
|| In carrying out an investigation under this Act and in any report made to Parliament under section 38 or 39, the Information Commissioner and any person acting on behalf or under the direction of the Information Commissioner shall take every reasonable precaution to avoid the disclosure of, and shall not disclose,
Here we are, going on our merry way. Is the Information Commissioner going to come to this committee under the provisions of the Access to Information Act, section 64, and say, “You guys are breaking the law, you're breaking the provisions of the Access to Information Act”?
There are a couple of exceptions to that. Paragraph 64(a) says:
||any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Act;
In other words, the head of the government can say that all the various sections that Mr. Wallace mentioned--and I won't repeat them--in section 15 should be blacked out. That person has the right to do that.
Mr. Chairman, I believe we should vote on this matter.
Some hon. members: Oh, oh!