Open Letter from the Information Commissioner of Canada to the Special Senate Committee on the Subject-Matter of Bill C-36: Anti-Terrorism

Ottawa, Ontario

[2001-11-28]

The Hon. Joyce Fairbairn
Chair - Special Senate Committee
on the Subject -Matter of Bill C-36
The Senate
Parliament Buildings Wellington Street
Ottawa ON K1A 0A4

Dear Ms. Fairbairn:

As you know, the Minister of Justice introduced amendments to Bill C-36 on November 20, 2001 and the amended Bill is now undergoing a time-allocated debate on third reading in the House of Commons. It is my understanding that, once it has passed in the House, Bill C-36 will be referred by the Senate to your committee. In anticipation of that referral, I write to bring to your committee's attention, a number of concerns I have about certain of the amendments which have been made to Bill C-36 since it received pre-study by your committee. I am only doing so, at such a late hour in the process, because I fear that the amendments strike an unnecessarily crippling blow to the ability of my office to play the independent, investigative role which Parliament endorsed when it passed the Access to Information Act.

I accept the word of the Minister of Justice that the provisions of Sections 43 and 87 of Bill C-36 are not intended to intrude upon the ability of the Information Commissioner to fully investigate decisions by government to refuse access to requested records. In my view, however, the amendments which have been made to these sections of the Bill, give the Attorney General the power to bring to a halt any investigation being conducted by the Information Commissioner. Such a power, over an independent officer of Parliament, has never before been reserved to government, for obvious reasons. The independence of an officer of Parliament would be at risk if a government could -- as was done in the case of the Somalia commission of inquiry -- terminate its investigations at will.

And yet, that is the power which the amended provisions of sections 43 and 87 of Bill C-36 would give to the Attorney General. This unfortunate, and unprecedented, result is accomplished as follows: First, under the amended version of the proposed section 38.13 of the Canada Evidence Act, the Attorney General is authorized to issue a certificate prohibiting disclosure of information in connection with "a proceeding" (which includes an investigation of a complaint by the Information Commissioner) after an order is made "that would result in the disclosure of the information". In the absence of qualifying words such as "disclosure to the public or a member of the public", it would be open to the Attorney General to issue a certificate under 38.13 to resist an order for production of records made by the Information Commissioner during an investigation.

The Minister and her officials insist that it is not the intention of 38.13 to enable a certificate to be issued in response to an order from the Commissioner for the production of records to him (and not for disclosure to the public or any member of the public). In her evidence before the House Committee on Justice and Human Rights, on November 20, 2001, the Minister testified that "the certificate could only be issued after judicial review of an access or privacy request". Yet, in three cases currently before the Federal Court, the Attorney General is resisting disclosure of this type of information to the Commissioner. In those cases, she is arguing that compliance with an order by the Commissioner for production of records to him, constitutes a "disclosure" for the purposes of sections 37 and 38 of the Canada Evidence Act.

It is vital, in these circumstances, for the proposed section 38.13 of the Canada Evidence Act to be further amended to make it clear that the certificate may only be issued after an order or decision that would result in the disclosure "to the public or a member of the public" of the information to be subject to the certificate has been made.

I consider it vital to secure this amendment because of the effect a certificate will have, under the amendments, on the role of the Information Commissioner, by virtue of the proposal to amend the Access to Information Act by adding section 69.1.

The proposed section 69.1 has been amended in a most troubling way since Bill C-36 was the subject of pre-study by this committee. It now provides that, where a certificate is issued before or after a complaint to the Information Commissioner is made, all proceedings relating to that complaint are discontinued. This interference with the rights of independent review given to Canadians under the Access to Information Act is overbroad and unjustifiable - even by the Minister's own criteria. Why should the Commissioner's investigation be prevented from starting or be brought to a halt when it cannot result in anything more than a recommendation for disclosure? Why should all aspects of an ongoing investigation be discontinued, including those which relate to exemptions which may have been applied to information other than that covered by certificate? In this latter regard, the committee is invited to compare the wording used in the proposed section 69.1(2)(a) of the Access to Information Act with that in the proposed section 70.1(2)(a) of the Privacy Act. Why does the former use the term "complaint" while the latter uses the term "information"? Why should all of the proceedings relating to a complaint be discontinued in the case of the Information Commissioner, but only those in connection with the certified information in the case of the Privacy Commissioner?

The proposed section 69.1(1) of the Access to Information Act should be amended to suspend only the portions of the Act which relate to judicial review and which, hence, could result in disclosure of the material covered by a certificate used under section 38.13 of the Canada Evidence Act. And the proposed section 69.1(2) should be amended so as to avoid any discontinuance of the Commissioner's investigations. There is no possibility of disclosure to the public at any time during the investigations of the Commissioner. Failing that, if any part of the Commissioner's investigations is to be discontinued, it should be only the part relating to the refusal to disclose the information covered by the 38.13 certificate. In other words, at a minimum, the word "complaint" in proposed section 69.1(2)(a) of the Access to Information Act should be changed to "information", as it is in the corresponding section of the Privacy Act.

It bears repeating that, as proposed, the Attorney General would be empowered by 38.13 of the Canada Evidence Act, to issue a certificate as a means of resisting disclosure of records to the Information Commissioner. The effect of such a certificate would be to suspend the entirety of the Commissioner's investigation of a complaint -- no matter how multi-faceted the investigation may be. Consequently, the government would have the legal tools to halt virtually any investigation of a denial of access by the Information Commissioner. It would, as well, prevent the Commissioner from reporting the results, as of the date of discontinuance, to the complainant and to Parliament. This is a power to interfere and muzzle which this Minister may not abuse, but which stands ripe for abuse. It is a power which Parliament has not seen fit to give government even with respect to its most sensitive cabinet confidences, and it should not be given to government now by inadvertence or oversight.

A final word is due concerning section 43 of the Bill wherein the Canada Evidence Act is amended (by adding section 38.131) to create an opportunity to seek, from a judge of the Federal Court of Appeal, an order varying or cancelling a section 38.13 certificate. If this is the "quid" for the "quo" of cutting off independent review under the Access to Information Act, it is woefully inadequate. The review permitted under the proposed section 38.131 of the Canada Evidence Act would be so limited as to be fruitless for any objector and demeaning to the reviewing judge. The reviewing judge's sole role would be to review the information for the purpose of deciding whether or not it "relates to":

1. information disclosed in confidence from, or in relation to, a foreign entity;
   
2. national defence; or
   
3. security.
   

Of course, I am at your disposal should your committee wish to receive further information or evidence from me in this matter.

Sincerely,

The Hon. John M. Reid, P.C.

c.c. Minister of Justice

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