THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 21, 2019
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts, met this day at 10:32 a.m. to give consideration to the bill; and, in camera, for the consideration of a draft report.
Senator Serge Joyal (Chair) in the chair.
[English]
The Chair: Welcome. We will resume our study and consideration on a clause-by-clause basis of Bill C-58, An Act to amend the Access to Information Act, the Privacy Act and to make consequential amendments to other Acts.
You will remember last night when we adjourned, we were at clause 19 of the bill. I will, of course, follow the usual procedure. I will, of course, call the articles in sequence and call the various amendments that have been tabled with the clerk of the committee. If you don’t have, of course, copies of the amendments, I’ll make sure they are circulated and made available. I will identify them so that all of you have capacity to follow easily where we are.
[Translation]
We are on clause 19 of the bill. According to my report, an amendment has been moved by the Honourable Senator Pratte.
Senator Pratte, go ahead and present the amendment.
Senator Pratte: This is a consequential amendment I am proposing for the judicial review not to be de novo as planned, but rather a judicial review of the order as such and not of all the case facts.
It requires changing the procedure set out in the last sentence of clause 19: “may... apply to the court for a review of the matter that is the subject of the complaint”. However, when the review is not de novo, matters are not the subject of the review; only the commissioner’s order is.
The amendment set out on page AP6 aims to amend and remove matters that are the subject of complaints for a review of any conclusion or order set out in the report. It is simply specified that the judicial review focuses on the order or the commissioner’s report, and not on other matters.
The Chair: Do you have any questions or comments?
Senator Ringuette: I must say that I am opposed to it. The Access to Information Act has been in place since 1983. When the Office of the Information Commissioner or a federal institution has brought a case before the court, the de novo system was always used. That system enables the information commissioner to represent the individual who filed the complaint, which is not necessarily the case in the process of a judicial system as described by Senator Pratte.
Will we change a procedure that has been in place for 25 years? Is the system ready for that? I don’t think so. Will that be useful to the commissioner? According to her testimony, it would not really be useful. Over the past few years, unless I am mistaken, eight decisions have been appealed before the courts, but the de novo process has always been effective for the commissioner called to testify before the Federal Court. So I am not happy about us deciding that the de novo system, which has been in place for a long time, is no longer effective.
I am really opposed to that system change. With new order powers that will be granted to the commissioner, perhaps she will change her mind. I doubt it, but, for the time being, the commissioner has clearly indicated that the de novo system meets the needs. Since Bill C-58 will give additional powers to the commissioner—order powers—I don’t see why the judicial process that has been effective thus far would be changed.
[English]
Senator Gold: This is a technical procedural question, not on the merits. Were we would pass this amendment but defeat the subsequent amendment upon which this is consequential, what would be the effect of the amendment we would have passed?
The Chair: That’s why I leave the discussion open on the principle of it, which is to change the change the system, as Senator Ringuette has mentioned. From the discussion that will take place around the table, you will be in a position, as a legislator, to make a decision. It is on that basis that I will decide, of course, the fate of the following amendment.
Logically, we should have started with the principle of the decision, but I think the principle of the decision has been well spelled out by Senator Pratte and answered by Senator Ringuette.
I will listen around the table, and then I will propose the approach we should take to deal with that issue.
Senator Gold: Thank you, chair. I, too, will be listening.
The Chair: Do you have any comments to add on the substantial of the discussion?
Senator Gold: For the moment, I would like to hear what my colleagues have to say.
[Translation]
Senator McIntyre: I congratulate Senator Pratte on his amendment. I am doing so because, on February 27, 2019, Nancy Othmer, Assistant Deputy Minister of the Public Law and Legislative Services Sector at the Department of Justice testified before our committee. She said that the de novo system is not new, but a continuation. The only new aspect is that the commissioner can make orders. However, on October 17, 2018, the commissioner, Ms. Maynard, said the following, and I quote:
A de novo review means that it is no longer my decision being reviewed. It means the institution’s decision is being reviewed further, for a second time.
I also remember the testimony of Ron Kruzeniski, the Saskatchewan information commissioner, who said that he felt that a trial de novo seems to slow down the process.
For those reasons, I agree with Senator Pratte’s amendment.
The Chair: I was just about to ask Senator Pratte to enlighten the honourable senators by summarizing the testimony we have heard overall.
I’m not trying to put you on the spot by proposing this.
Senator Pratte: I don’t have it with me.
The Chair: I think that Senator McIntyre has done a good job of identifying what led to the proposal. If you want to add something to that aspect, I invite you to do so.
Senator Pratte: It all comes back to the logic of the fact that, as Senator Ringuette pointed out, the commissioner is now being given the power to make orders. An amendment further down will authorize the commissioner to get those orders certified by the Federal Court. So this is a process resembling that of an administrative tribunal. The criterion at that point, when there is an appearance before the Federal Court, does not bring together all the facts, but, as Senator McIntyre was saying, it is the commissioner’s decision that is under review and not the entire case. For me, it is logical that, if an order power is granted, the de novo hearing is eliminated, and the order must be the subject of the review.
[English]
Senator McCoy: I too support this amendment. I support it on the grounds of administrative law and the independence of the Information Commissioner. We create these officers of Parliament, or whatever you want to call them, in order to take on roles, and then we expect them to develop an expertise, and then we want them to exercise it. So what we are basically moving toward is, first of all, giving her order-making power. Then we should not encourage a system that allows a court or indeed departments to disregard the exercise of her judicative process and decision but to actually respect it. That’s a long-standing practice. I was admitted to the bar in 1970 and so that has been a principle long before that in administrative law. So you only get de novo — we tended to use de novo hearings when there had not been a reliable decision-making process before that.
Now, anecdotally — and this is on the basis of my background in administrative law, which I practised before I got elected, I would support this.
Second, though, just anecdotally if I may say, and I think a bit of this came out although maybe not as bluntly in the testimony. I would not be able to put my finger on the page number in the transcripts when we heard it, but certainly in talking with people who are practising in that area they are using this legislation all the time. Some of them had experience whereby they would get to the steps of the courthouse, so to speak, and the department would have shown up, and they would have developed an entirely new case, without warning. There is a principle of practising law, which is enforced strongly, and that is you don’t surprise the other side. Yet the way de novo hearings are set up and the way they were being prosecuted before, it actually created the correct environment to allow that to happen. We call it sandbagging, and that’s also to be discouraged.
On those two grounds alone I support this principle and therefore this particular amendment, which would be part of the package.
[Translation]
Senator Ringuette: I cannot base my argument on my experience in the justice system. However, I think that what Senator Pratte is proposing would essentially eliminate the commissioner’s appearance. If I may, Mr. Chair, I would like to ask our expert to come talk to us about the two systems. Could she tell us what would be, in reality, the commissioner’s participation in one or the other of those systems before we make our decision?
The Chair: I am receiving Senator Ringuette’s request.
[English]
The Chair: Ms. Naylor, good morning.
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Treasury Board of Canada Secretariat: Good morning. My colleague Sarah Geh is from the Department of Justice so in terms of being able to speak to some of the administrative law considerations that may be of interest to the committee I thought it would be helpful for her to be here.
The Chair: Welcome, Ms. Geh . Did you hear the question from Senator Ringuette, or do you want her to repeat the question so that you are in a position to answer?
Sarah Geh, Director and General Counsel, Department of Justice Canada: I think the question, if I understand, was to talk about the different roles the Information Commissioner plays in a de novo process so that all of the considerations that are relevant to that process could perhaps be discussed by this committee.
Senator Ringuette: And if you could compare it to what is being proposed by Senator Pratte in a judicial review.
Ms. Geh: The Information Commissioner since the current act was introduced has played multiple roles in the de novo regime, starting from the beginning point of the process when the complainant files a complaint with the Information Commissioner. So the Information Commissioner, as you know, plays an ombudsman role where she issues compliance guidance. She has full control over her own procedures, which means that when a complaint is filed she takes an inquisitorial role in investigating the complaint. So she is an investigator.
It is a private investigation so submissions or representations by the different parties, so the complainant, the government institutions, potentially third parties, are submitted but they do not see each other’s submissions in the current de novo process. It is a completely private investigation. Then she issues her report, which currently has recommendations but in the future could also have an order as we’ve indicated. But then, in addition, during the de novo process she can also act on behalf of the complainant in front of the Federal Court. I believe that this is what she has supported in her testimony before this committee.
And then at the time of the de novo hearing there are timelines set out in the Federal Court rules for exchange of submissions before the de novo hearing, which can include new arguments on behalf of the government institution or the Information Commissioner.
In the context of a judicial review, it’s quite a complex area that fundamentally affects all of the pieces along the spectrum from when the complaint is filed to when it goes to Federal Court. So I don’t know if I can accurately reflect the complexities of Senator Pratte’s amendment. But in a traditional judicial review there is at the Information Commissioner level a more perhaps formal separation between the investigation group and the group that would be making the decision. So that those are separate and the investigation process is separate from the decision making.
In addition, before the decision would be made by a commissioner in a more traditional judicial review, the submissions of all the parties would be circulated to each other so people would have the opportunity to know the case to meet before the decision is made by the commissioner. And then when it would go to court in a traditional judicial review, the issue under review would be focused on the Information Commissioner’s decision, as has been indicated here. But typically the decision maker does not appear in court and certainly does not appear in court as an advocate for one side like the complainant.
The Chair: I think you have given a clear summary of the distinction between a de novo procedure whereby it’s not the decision of the commissioner that is being debated by the Federal Court, but it’s rather a new process whereby the commissioner takes a stand, as you say, normally in favour of the complainant. While in a proposal, as in the one mentioned by Senator Pratte, the commissioner has been the decision authority and as such, it is the way that the commissioner has exercised his or her authority that is under review. That’s the fundamental distinction between the two processes.
I don’t want to start lecturing on administrative law — I’m also a graduate from administrative law — but I just want to outline to honourable senators in very simple terms how the two approaches differ. But that’s to help all senators to understand.
Senator Dalphond: I was going to make some remarks about judicial review and de novo and try to explain the difference because I was an administrative law judge. And I was teaching the judges about administrative law, so I know the distinction.
I thought Senator Ringuette’s questions were very important. What will be the role before the Federal Court in both scenarios? Because if we use the de novo track, I understand, based on experience, that it will be between a department and the commissioner. That would be the parties irrespective of — correct me, but my understanding from what you said is that the person who made the claim for a document is often not the party who will be acting in the de novo process. It would be the commissioner on behalf of the person asking for the document.
[Translation]
It would be the party’s de facto prosecutor.
[English]
And if it is a de novo process, that’s normal because, as you say, you start with the decision of the department or the agency, not the decision of the commissioner.
With judicial review, the principle is that the person who made the quasi-administrative tribunal has a limited role for jurisdiction. This is accepted by the courts and that’s about it. After that, it has to remain neutral because it cannot be party and decider at the same time.
So the person who made the claim to access to information has the burden. If it’s an association or company, it would be easy; they have lawyers, they will be showing up. If it’s an individual, I think maybe this is where I’m reluctant, where I have hesitations and concerns. I wonder who will speak on behalf of this person who paid the $5 and nothing else, and wanted to get access to the document.
That’s why I’m puzzled and I want to hear based on your experience. I understand from judicial review that the Supreme Court has said we are dealing here with quasi-constitutional rights, which most likely will lead to the correctness standard instead of the reasonableness standard, which means that for the legal issues, even a judicial review, the Federal Court will be tempted to give its own interpretation of the act. But they will be stuck with the factual findings. Nothing else could be added to the factual findings. They will have to live with it. And by the way, that is what your proposed section 44.1 does say. That’s my understanding.
I wonder, based on your experience, how many persons who made the claim for access and were denied claim or if it was granted but the department or agency is in a de novo process do appear to stand for their claim or is it the commissioner that always does the job?
[Translation]
Senator Carignan: Complementary to the question, I’m happy to hear from Senator Dalphond. I wanted to know what his position is.
Senator Dalphond: I still don’t have one.
Senator Carignan: No, but you have the same questions.
In his question, Senator Dalphond takes for granted that the office will agree with the party and not the department. However, what will happen if the office rejects the individual’s complaint? What will be the office’s position in the federal government’s review? Will it defend its decision? How will it participate at that point?
Senator Dupuis: I would like to get clarifications about the question asked by Senator Dalphond, before you answer, Mr. Geh.
The Chair: If we are talking about the same issue.
Senator Dupuis: It is the same paragraph. I don’t know if it’s the same issue, but it’s the same paragraph.
Senator Dalphond: As long as it is similar to my question.
Senator Dupuis: I would like to get clarifications on what is set out in Bill C-58 as an amendment to the current system. We have to see how Senator Pratte’s amendment will change not the current situation, but what is set out in Bill C-58. Thank you.
[English]
The Chair: We are on the context now of an order. We are no more only on the investigation; an additional power is added to the status of the Information Commissioner by the act, as Senator Dupuis has mentioned. The act grants to the commissioner the capacity to issue an order. When you issue an order, at which level of the administrative process do you add to the capacity of the commissioner?
I think that Senator Dalphond and Senator McCoy and all the lawyers around the table will understand well that the status of the commissioner has changed in the act in relation to his or her administrative capacity.
Ms. Geh: I’ll try and take the questions chronologically more or less.
With respect to Senator Dalphond’s question about the role of the complainant, and perhaps a bit touching on Senator Carignan’s question as well, in the de novo regime, the complainant, the Information Commissioner can act on behalf of the complainant but that is only with consent of the complainant. There may be situations in which the complainant does not wish the Information Commissioner to act.
There are provisions in the current act, as well as in Bill C-58, where the Information Commissioner can be a party to a hearing at the Federal Court. The current provisions allow her to do so as a matter of right for section 41 proceedings. For section 44, which is third party proceedings, she has to ask for leave from the court to intervene but it is an easier standard for her to meet than the Federal Court rules set out in a typical other proceeding.
Senator Pate: I’m wondering how many times that has happened, because I’m not aware of us having evidence about the number of times that has happened even if it has ever happened in either of those cases?
Ms. Geh: We have a record of, let’s say, the last five years according to the Information Commissioner’s reports and looking at Federal Court cases. In the last five years, there have been eight cases where the Information Commissioner has brought an application in Federal Court.
The Chair: Senator Pate, they are mentioned in the letter that Minister Lametti has been circulating and that is appended in our proceedings from yesterday. We have agreed to append that.
Senator Pate: My apologies, I missed that.
The Chair: No, not at all, I just wanted to give you additional information.
Ms. Geh: Those do not include cases where a third party brought a proceeding and the Information Commissioner intervened. In those cases, it is where the Information Commissioner is appearing. I don’t know of situations where the complainant has appeared themselves in any of those eight cases.
With respect to Senator Dalphond’s question about the standard of review, in thinking about how things have worked in other systems, the standard of review is likely going to be reasonableness because of the way we think it has worked in provincial jurisdictions. We think that may be the way the court would go, rather than correctness in this particular situation.
With respect to the role of the complainant, to go through Bill C-58, and with respect to the Senator Pratte’s specific amendments, I think the problem is that the de novo process and how it is set up affects the whole system fundamentally from the role the Information Commissioner plays at the front end in engaging with the complainant and the parties to the remedies the Federal Court can order at the end and will then be looking at. In trying to disentangle the implications, it’s quite a complicated matter to understand them all fully.
I can say that Senator Pratte’s amendment, from what I understand, would change section 41, which allows for review of the Federal Court, from a review of the matter to a review of any result or order set out in the report. If the complainant goes to Federal Court, the government institution can only go on an order and third parties and the Privacy Commissioner.
In addition, it takes out 41(5), which is about who would be named as a respondent in a judicial review. With this being taken out, one of the other pieces that comes into play is the existing Federal Court rules, which set out rules about who should be named as respondent, time for service and those kinds of things, so there is an interaction between what is in the current bill and when it does and does not replace Federal Court rules. That is also somewhat complicated to go through.
One point I would also like to highlight is that, if my understanding of Senator Pratte’s amendment is correct, section 42 of Bill C-58 is removed, and that is the provision that allows the Information Commissioner to appear before the court on behalf of the complainant or to appear as a party to any review applied for under section 41 and, with leave of the court, appear as a party to any review applied for under section 44.
As previously stated, in a typical traditional judicial review, the decision maker does not appear as an advocate of a party but there are, then, consequences for the burden that is placed on complainants in the situation which, in a de novo situation, allows the Information Commissioner to have a greater number of roles and act as an advocate for the complainant where appropriate.
I think my colleague may add more to the role of the complainant aspects of it from more the policy side.
Senator Dalphond: If I understand properly what you said, the whole mechanism has been built on the de novo process. If we amend to make it a judicial review, we have to amend not only these sections that we are dealing with, but plenty of other sections.
Ms. Geh: That’s correct.
The Chair: Because we are changing something fundamental.
Senator Dalphond: I just wanted to make it clear that it would be a complicated job.
The Chair: There is no doubt about that because we are going to make the Information Commissioner the equivalent of an administrative tribunal. If we do that, of course, we will have to adapt the rest of the legislation. There is no doubt about that.
Senator Ringuette: Just to add to Senator Dalphond’s point, and I hope you understood clearly earlier in their comments that not only are we changing the outside process of the de novo, we are also going to be changing the way that the commissioner operates within, from investigators and so forth. We are also going to be changing the way she and that office have been operating in how they deal with complainants since the Information Act was put in place.
The Chair: I think that is obvious in the minds of senators when we are considering the issue at stake here, but Ms. Naylor wanted to add to the explanation.
Ms. Naylor: I thought the committee might like to be aware that the issue of the Information Commissioner being able to continue to represent complainants in the future through a process that’s unique is set out not only in the Access to Information Act, but we had something similar in the Privacy Act for the Privacy Commissioner, as well. It’s been important to some of the stakeholders. For example, the National Claims Research Directors, the Union of B.C. Indian Chiefs and the AFN discussed this with us and they underscored for us the importance. They wanted us to provide assurances in Bill C-58 that that ability had been preserved.
That’s one of the reasons you do see a unique procedure created here. It borrows from some of the approaches we see in Newfoundland’s legislation, but that has been an important consideration as these amendments were developed.
[Translation]
Senator Dupuis: To continue along the lines of what you just said, Ms. Naylor or Mr. Geh, isn’t the idea to maintain a system where the commissioner can stand up for the complainant, as is seen in other areas, such as human rights?
[English]
Ms. Geh: The idea of a de novo process is to ensure that the complainant has access so the Information Commissioner can act on their behalf, as you said. In the context of human rights, it’s a slight differentiation, as you are probably aware, because there is the commission, which can act on behalf, but then the tribunal is making the decision. That is how they have dealt with the administrative law issues we are struggling with today.
Senator Dupuis: Thank you.
Senator Ringuette: Since I come from the only bilingual province in this country — New Brunswick — and this is a quasi-constitutional tribunal, what about language rights? You just compared it to human rights. What about language rights? Where would that stand in comparison to the system?
Ms. Geh: I admit I don’t have expertise in the Commissioner of Official Languages’ abilities. I do not believe the commissioner has the ability to make binding orders.
Senator Ringuette: Okay.
The Chair: The Official Languages Commissioner is essentially an ombudsman and, as you know, the act is under review for obvious reasons of complaints because after 50 years of the Official Languages Act, there are still a lot of issues that remain pending, to be diplomatic, and that issue is being debated in another committee of the Senate, of course.
Senator McCoy: I think one of things we need to keep in mind is that the regime has been changed radically from what happened for the first how ever many years it was. This came into being in 1983, so what is that? We’ll say 35 years and round it off. This is the first time the Information Commissioner has had the power to make an order. So it’s now about the enforceability of her order.
All of these 35 years, she could give recommendations, but they could just sort of evaporate into thin air. In order to enforce, she had to have a workaround, and the way to work around it was to go to the court and say, “Listen, my recommendation was a good one, and I want you to compel the department to do as I said.”
But now we don’t need to do that anymore, because she has the order-making power. Now we’ve given her the power. We’ve made her a quasi-judicial tribunal, essentially. Now we want to say, “Oh, but she still needs training wheels, so we’ll let the Federal Court start all over again, and they can have a whole new —” That’s just a sign of disrespect, I think, and it’s going to be a sign of greater expense.
If the order comes before the court and is challenged, it can be challenged by whomever has an interest in it. I don’t know the Federal Court system as well as many around this table, but I can tell you that when I was senior legal counsel for the Public Utilities Board in Edmonton, we regularly gained status in front of our Alberta Court of Appeal and in front of the Supreme Court of Canada for the public utilities board, not so much as an advocate but more along the lines of an amicus curiae. We were there to answer questions, if necessary, and to put forward a view of our jurisdiction, in most cases.
That probably would still be the case. The courts can give leave for standing. But the fact of the matter is it will be up to — if, for example, the Indigenous peoples have received an order from the Information Commissioner that is in their favour, they will no longer need to go to court. It will be a court order. If somebody disagrees with it, it’s at their expense to go and appeal the order. After that, if it’s a question of resources, I don’t think we should hobble an expert quasi-judicial tribunal, which we’ve created, in effect, because of resources needed elsewhere.
What we should again be looking for — and maybe it’s an observation to be added to this report — is consideration of the resources that need to be invested in our access-to-information system. It’s not legal aid so much as it is assistance for people who need to have some kind of financial backing in order to have legal representation.
The Chair: Just as side information, senators, I checked with the library yesterday, and the government in the present budget has added $3 million to the Office of the Information Commissioner. It’s for everyone to see.
Senator McCoy: That’s excellent. Let’s hope they get it before October next year, which has been the practice up until now.
The Chair: It goes back to the beginning of the year, if I remember well.
Senator McCoy: Let’s hope so.
The Chair: But that’s not the issue this morning.
[Translation]
Senator Pratte: As for the issue of the commissioner’s role—
[English]
— and maybe it will turn into a question, and to emphasize Senator McCoy’s point: What changes the commissioner’s role is not the eventual amendment that would be passed; it’s the fact that she can now issue orders. Therefore, her role has changed radically because of that, hasn’t it?
Ms. Geh: I agree that her role has changed because she can issue orders. I think the way the process has been designed in Bill C-58 is not to change her role, though, at other points in the process because of the de novo review.
Perhaps this is where there’s a bit of a distinction between the question about enforceability of orders and certification versus the de novo question that we’re having now. The system as it’s set up, although there are orders which are legally binding now, is still based fundamentally on a de novo system. With respect to the rights of the complainant, the rights of different parties to see submissions before the Information Commissioner makes her decision and the ability of the Federal Court to make appropriate remedies — all those systemic things are still premised on a de novo system.
Senator Gold: If I understand our discussion, the amendment that Senator Pratte is proposing would have an impact on the internal processes. It would also entail broader changes to the act than are necessarily contemplated in the package of amendments.
The order power is new. This is one of the new things.
There’s a one-year review coming up, so this leads me to observe something about a possible observation. I take it that one of the rationales for the amendment, which I support, is to reduce delay. Delay is an endemic and systemic problem this bill tries to address and that we’re concerned about.
I wonder whether, given there are a number of new things in Bill C-58, we have a review coming up — that we couldn’t use the year or at least use the one-year review to analyze the impact of delay, generally, but specifically: Do de novo hearings materially increase delay? One year may not be enough time to study that — but also to revisit whether we should move from de novo to judicial review.
I’m a little diffident about making the change at the same time we’re introducing the order power, if it has this impact internally and consequentially, without knowing more how it might affect it. I am concerned about delay. Maybe we could use the year to study it and even start working before the one year, so that when we arrive a year hence, the Senate committee system will have done some work to prepare the way for a proper evaluation.
It’s a thought I throw on the table.
[Translation]
Senator Dalphond: I don’t have much to add. Senator Gold did a better job of explaining the concerns than I could have. Caution remains warranted. I will not comment at this time. I am fairly sensitive to the factual elements that have been mentioned, including that there have been eight de novo cases in five years. Perhaps that could be multiplied by two, which would bring the total to 15 de novo cases in five years. To my mind, that is not a systemic problem; far from it. It appears fairly limited to me. In this regard, I will not comment to the detriment of the eight people who made request for access, which were refused, and which the commissioner took over to argue a case that is sometimes very complex and difficult. Had that not happened, there probably would have been no decision or the case would have been thrown out. I don’t think the proposal before us should be changed. It is too structural and takes matters too far. In a year, we could review it by taking another look at it. In the meantime, as part of our report, we could invite the department to look into the possibility of moving from a de novo system to a judicial review system.
[English]
Senator McCoy: I wanted to raise the issue of mandamus once again in this context, because it actually fits in the discussion. As you say, there’s a spectrum — what happens at the beginning and what happens at the end. Mandamus is the court remedy that the Justice Department has heretofore pointed out as being a good thing. We did ask the Information Commissioner to analyze the difference between that or enforcement privileges of her order that would become equivalent to a Federal Court order. If my memory serves me correctly, it favoured the enforcement that has a court order.
One of the reasons for that is because the Federal Court is very strict about issuing a mandamus. One of their preconditions for issuing mandamus is that the authority that is given to the official — “mandamus” means go and do it, and it’s based on an official having an authority that they are to exercise.
What the Federal Court says is we will only tell you to go and do it if it’s mandatory for you to exercise that authority. The fact of the matter is we’re creating a quasi-judicial tribunal in the Information Commissioner. She does not have a mandatory authority. She has a discretionary authority to make an order. So the likelihood of mandamus ever being available as a remedy is zero.
The Chair: It’s theoretical.
Senator McCoy: Let me step back. There was a point I wanted to put on the table. You’re quite right; there are many layers and it builds up a whole new tapestry. However, there are also many considerations of why the situation has changed so much now that the government has seen fit in Bill C-58 to give the Information Commissioner order-making authority. So at that point you say to yourself: Why have they done that and then stopped short of actually giving her the respect that a quasi-judicial tribunal would entail? It will no longer be her role, having issued an order, and be an advocate for the complainant in any court.
Once she’s made an order, even on a de novo basis, she’s going to have to be supporting her own reasoning, not whatever it might be in favour of whoever it might be. And it won’t be there as a workaround; it will be because she’s defending her own order.
Anyway, I can’t say too much about this. I do appreciate, though, the prudence that Senators Dalphond and Gold are urging upon us and point out that the only reason those eight applications over the last five years were made by the commissioner was because that’s the only way she could enforce her recommendation, and that she will not have to do any longer. The fact is, I don’t suppose she will be making any applications to the Federal Court at all.
[Translation]
Senator Carignan: I am trying to understand, as we are deciding between a de novo process and a judicial review. The current legislation uses the word “review”, and that term has been interpreted as a de novo appeal or a de novo review.
Do the amendments proposed by Senator Pratte really make a change in terms of the review standard? Is it really being turned into a judicial review exercise? Or is it not rather a matter of regulating and giving way to a form of appeal of questions at issue instead of a question of judicial review in the sense of judicial review? Perhaps you could talk about it, Senator Dalphond? We are on page 14.
[English]
The Chair: In a de novo procedure, there is no judicial control. You just start anew. There is no revision of the due process or of the correct decision. It’s a de novo; it’s a new procedure. The commissioner has to go to the court, make his or her case, and the parties come forward. So there’s no control in a de novo proceeding.
[Translation]
Senator Carignan: Exactly. You are bringing my attention to subsection 44(1). Senator Pratte, it seems to me that the intention is to adopt a form of appeal and not a form of judicial review.
Senator Pratte: I do not understand the distinction you are making.
Senator Carignan: The restraint will not be the same in Federal Court if we are talking about a simple appeal as opposed to a judicial review. The difference will be much larger if it is a judicial review and not a form of appeal.
Senator Pratte: Exactly. However, the intention was to make it a judicial review.
Senator Carignan: So you would propose the judicial review.
Senator Pratte: Yes, with the “reasonability” standard.
The Chair: Absolutely.
[English]
That’s the fundamental distinction of the decision to make. I might re-explain it to ensure everyone understands it.
In a de novo procedure as we have now and as the bill maintains, there is no judicial control of what the commissioner has been doing as investigation and the conclusion that he or she has reached. It’s a de novo. It starts anew. It’s as if nothing existed before. That’s the present system.
What Senator Pratte is proposing is that the commissioner does the investigation, as the act provides, issues an order, as Bill C-58 provides, and Senator Pratte adds the certification which gives to the decision of the commissioner a binding effect on the administration to comply with the order. If you want to challenge the decision of the commissioner, the court will review the procedure that the Information Commissioner has to follow in her reaching the decision. It’s the judicial control on reasonable grounds.
There is a capacity for an administration that is still opposed to the decision of the commissioner to go to court to seek an order to quash the certified order of the commissioner. That’s the system that Senator Pratte is proposing.
What the bill proposes more or less brings the commissioner to the door of the court but leaves it there by maintaining the de novo procedure. The de novo procedure is not a control, of course, of the decision of the commissioner or the order of the commissioner. It’s just starting anew. That’s the essential choice that our discussion and the testimony of the witnesses brings us to decide.
Senator Ringuette: My understanding, from what they have been saying and from what you have just stated, is that the current de novo process leaves the commissioner at the door. That’s not my understanding.
The Chair: No, that’s not what I said. What I said is as the bill stands with the proposal to give to the commissioner the power to issue an order. In other words, she does an investigation and she comes to a conclusion. That conclusion, with the bill, has the quality of an order. But the aggrieved party, the administration, cannot go to court to say to the court or to prove to the court that the commissioner has erred in her investigation and in her conclusion. That would be a judicial control, if that is what Senator Pratte is proposing.
What the bill proposes is that there is an order, but that order is not reviewable in court. If you want to challenge the commissioner, it’s a de novo procedure, we start anew, and it is as if nothing has ever happened. Everybody goes to court and we start the process of making the proofs, the allegations, the documents, the reasonableness and why not and why so. That’s for the court to decide.
I think I’m trying to summarize it as clearly as possible in the minds of all the senators on the decision to take at this stage where we are in our discussion.
[Translation]
Senator Dupuis: I would like to thank the people from the Department of Justice and those from the Treasury Board Secretariat for clarifying the issue for us. I think that the situation is sufficiently clear and that we now understand. We may be ready to vote on the amendment proposal.
[English]
Senator Gold: I understand the logic of the amendment. It really does follow logically from the order-making power, and I understand the point that Senator McCoy has made about both respect and perhaps the need for what you call the workaround.
The law we are confronted with in Bill C-58 is a compromise. It’s not perfectly logical perhaps one might say. But I do think, and I’ll be very brief, that it might be preferable if we give ourselves the year to think this through a bit more. It may very well be that the logic of the order-making power compels us toward a judicial review. I can see that clearly, but I think we need time to sort out the internal details and maybe have the commissioner and others come back and explain how that would work in terms of their investigative procedures and their relationship with the stakeholders as the process unfolds.
Without suggesting that we take on a mandate to continue studying access to information in the year to come, I think, on balance, though the logic is there for this amendment, I’m inclined to vote against it.
[Translation]
Senator Pratte: I agree with us voting, but I have a question to ask first.
[English]
Another amendment that we will study later allows the commissioner to go to Federal Court and have her orders certified by the Federal Court. The idea behind this amendment is that we’re not confident that the mandamus process is satisfactory and efficient enough.
If the amendment is rejected, the whole concept of having judicial review is rejected. What is the effect on the further amendment proposal to certify the orders in Federal Court?
Ms. Geh: The certification of orders is about whether, in the situation where the order is issued by the Information Commissioner and the government institution does not pursue the route laid out in the bill to go before a court and challenge it but ignores the legally binding order, then what are the consequences. That is, I think, separate from the discussion that you’re having now over de novo versus judicial review. That could be discussed separately from this question.
Senator Pratte: Thank you.
[Translation]
Senator Carignan: I like the idea of removing the de novo process and not necessarily going to a judicial review. The idea of redoing the entire process bothers me. We need to find a good balance. If we decided to go with a form of appeal instead of a form of a de novo review, what then?
Senator Pratte: At that point, it would be a matter of rewriting everything.
Senator Carignan: Yes, but we have time. That’s what we are here for. What do you think, Senator Dalphond?
Senator Dalphond: There are three options. Perhaps wisdom would tell us to operate for a year with the proposed recommendation and to look into it later. An appeal may be the right answer, or a judicial review. An appeal would be more limited than the de novo process. A judicial review is even more limited than an appeal.
Senator Dupuis: There is a hierarchy.
The Chair: Senator Carignan, did you want to take the floor, or should I first recognize Senator Pratte?
Senator Carignan: I was going to say that I was in favour of the amendment. In any case, the bill has already been amended in a number of areas. Indicating that we want changes to the de novo system will send a much stronger message to the other place if we proceeded with an amendment. Either way, the House of Commons will be free to reject the amendment or to accept it. If it accepts it, so much the better. If it rejects it, at least the message will be more powerful with an amendment than with a simple observation attached to the committee’s report.
Senator Pratte: It’s a bit strange. I was rather going to propose to remove the amendment for the following reason. I am fairly sensitive to all the arguments that have been made according to which we are getting involved in a process that is more complex than the one I had anticipated. I am personally still convinced this is the way to go. At the same time, I want us to do things properly. As the legislation will be reviewed in a year, I would withdraw the amendment in favour of an eloquent observation that the government should study this issue and that we would continue to consider it.
Senator Boisvenu: I have listened to both sides’ arguments. I remember from the testimony how difficult it is for many Canadians to readily have access to information. I agree with my colleague, Senator Carignan. I think we should send a clear message to the government that the philosophy whereby this legislation is put into practice must be changed to give Canadians an advantage rather than to bureaucratic organizations. As a result, I will support the amendment if the senator maintains it.
Senator Dupuis: I support Senator Pratte’s motion to withdraw his amendment. I think that the exercise we undertook this morning clarified the current system, which is what Bill C-58 is trying to do, and which the amendment was introducing by compromising the current system’s integrity. In that sense, I don’t think it is really up to us to act as drafters of a piece of legislation because we believe that the changes must be made. We can share our comments very clearly through an observation on the bill.
Senator Ringuette: I will certainly support Senator Pratte’s decision. In addition, we don’t have to vote for or against this motion. The amendment before us is Senator Pratte’s proposal, which he has decided to withdraw. Voting is not at issue. He is withdrawing his amendment. However, for the good of everyone, I think there should be a comment in our report to that effect asking that, in the 12-month period following the review, a study be undertaken to determine whether the system proposed by Senator Pratte would be preferable. Removing the commissioner’s ability to represent complainants bothers me. In many cases, the process calls upon individuals, entities, who cannot financially afford to pay lawyers to defend their cause. In short, Senator Pratte decided to withdraw his amendment in favour of a recommendation attached to the report, and I completely agree. Voting is not at issue. This is his amendment.
[English]
The Chair: The amendment is now at the table of the committee and it belongs to the committee to decide if the amendments will carry on or not. We are bound in this committee with the same rules, of course, as the Senate Chamber. As you know, once the amendment has been tabled it belongs to the committee per se. I need the unanimous consent to allow Senator Pratte to withdraw his amendment, otherwise we have to vote on the amendment. That’s the rule.
But before I suggest to you an approach for your consideration, I will want to hear from Senator Batters and Senator McIntyre.
Senator Batters: Thanks very much. I did support this amendment of Senator Pratte, so I am interested to hear what Senator Joyal indicated about the withdrawal of it. And also, when I came back into the room, I was pleased to hear that Senator Carignan would be proposing this amendment if it was to be withdrawn in some fashion. Because with respect to Senator Dupuis’ comment that she just recently made here, I would just say that this is the Standing Senate Committee on Legal and Constitutional Affairs and it is up to us to redesign legislation where it requires redesign and I think, particularly on this item, our lengthy and fruitful discussion has shown that this portion of the legislation is necessary to be redesigned.
Sober second thought is our job and that’s exactly what we are doing on this important aspect and some important elements have been brought up here. I think this particular amendment, not merely an observation, is needed to send the strength of a message to the government about this particular matter.
[Translation]
Senator McIntyre: It’s Senator Pratte’s amendment. If he decides to withdraw the amendment, I’ll respect his decision. However, I still think that the commissioner’s decision must be final. Otherwise, it will be replaced with a process whereby the decision will be left to the Federal Court.
However, I’m thinking of the citizens or institutions that request information from the Government of Canada. In my opinion, the de novo process may delay the release of information. From my point of view, the de novo process is a step backward.
[English]
The Chair: There are no more senators on my list. I was reflecting when the debate was taking place this morning, and I would suggest to you — to reassure all senators in terms of questions that they have and the reflection they have around this fundamental issue of the bill — to have the point of view of the commissioner.
I inquired from the clerk that there was somebody from the commissioner’s office in attendance in the room, but the person is not in a position to answer questions on behalf of the commissioner on that very specific issue. Considering the importance of the issue, I was to suggest to you — but again I don’t make a proposal — that because we have gone around all the elements of information, would it not be appropriate to hear from the commissioner on this very issue, on the basis of the discussion that we have had this morning?
I was to suggest to you to stand that issue and invite the commissioner or a representative of the commissioner to come as a witness, as we had the benefit this morning of hearing from the Department of Justice and the Treasury Board. It was a way for the committee to be in a position to take a decision now; I am in the hand of committee on this. But as I say, since there were elements of questions that would have been better answered by or completely answered by the commissioner or his or her legal representative, I would suggest that.
But if the committee is in a position to vote now, I will then call the vote on the motion of amendment of Senator Pratte. And I will understand that if that motion is carried, we will continue with the other consequential amendments. If the motion is defeated, I will understand all the other elements linked to the principle of a de novo procedure versus judicial review of certified decision by the commissioner would then proceed.
[Translation]
Senator Boisvenu: Do you want us to debate your proposal?
The Chair: I made a suggestion.
Senator Boisvenu: Do you want input from both sides of the table? You’ve put forward an idea. Do we nip it in the bud or do we discuss it?
[English]
The Chair: When you were at caucus, I was caucusing with myself, too. I was saying, how can we make progress in the reflection, because that’s the responsibility of the chair, to come to a result. And not only a reasonable result but a result that we can defend as legislators as being the result of objective canvass of all the aspects. This morning, the only reaction we didn’t get was from the commissioner herself or the legal adviser of the commissioner.
[Translation]
Senator Pratte: The chair’s proposal has real value, especially since I didn’t review the evidence given by the commissioner during her appearance. However, we received two different interpretations of her comments on the issue. It wouldn’t be a bad thing to meet with her again to discuss only this issue. We won’t spend our time going back and taking three hours to discuss it. Senator Carignan would like to spend another three hours on this issue.
Senator Carignan: No, not at all. You know my need for efficiency.
[English]
The Chair: Senators, if we think about the long term, and we are an institution with a long-term perspective, if these aspects of this discussion are to stay on the table and in the context that we would want, if we don’t take a decision to follow the course proposed by Senator Pratte, I would certainly consider that there might be interest to have observation that will expand on this.
I think to add the point of view of the commissioner to our observation would be sensible. For the future of our work, it would be helpful to have the views of the commissioner on the basis of the discussion that we had this morning essentially. That’s why I propose that. It’s not to delay anything but, in fact, it’s to be sure that we understand exactly the course that is proposed and its implications for the functions of the system.
[Translation]
Senator Carignan: When Senator Pratte looked at me and saw that I had a question mark over my head, I had two thoughts. Do we invite the commissioner back or do we ask her for a written comment? If we invite her to appear, we can take advantage of the opportunity to engage in discussions, ask questions and obtain additional information. It would be more effective to invite her.
[English]
The Chair: I was to suggest having the commissioner and her legal adviser. Because what we have been discussing is so “legalistic” that to have the commissioner accompanied by her legal adviser would be appropriate so that honourable senators can ask any questions and we could get the complete answers in terms of legal issues.
Senator Ringuette: Because of your suggestion and the length of time that we’re having on every amendment — and that is okay, the issue has been before the Senate for a year and a half — and because you would like to entertain the commissioner, I would move that this committee ask, or table a motion in the Senate chamber to sit even though the Senate is sitting.
[Translation]
Otherwise, we’ll dig into the bill and continue the discussions. I have no issue with that. However, we must respect the time frames for discussions as we delve into the bill and review the proposed amendments, which always make it seem as if we’re going over certain things again. I want us to remain committed to the work in order to obtain the desired results. To do so, we must meet more than twice a week.
[English]
The Chair: On this very point, Senator Gold?
Senator Gold: Yes, I would support that. I’m concerned less about the time we’re taking on this bill. Every bill is important. This is an important bill, but there are other bills in the pipeline, and we have only so many sitting days yet. The bills the committee has yet to receive, which are important bills as well, will require our attention. None of us want to be rushed toward the end or appear to be rushed, so I would encourage the chair to explore the maximum number of hours as is reasonable.
The Chair: Thank you for your comments. I could comment on that. Senator Carignan, go ahead.
[Translation]
Senator Carignan: We can express the desire, but I think that the decision won’t be made at our level. Yesterday, I participated in a number of subcommittees that sat at the same time as the Senate. I also sit on the committee studying Bill C-69, which met after hours. I don’t know how the whips can resolve this issue.
[English]
The Chair: Usually the procedure is simple, and I want to remind honourable senators: Steering meets, of course, and we consider the progress of our work. We do it amicably and we do it as effectively as we can. If steering comes to a conclusion, as we did last week, to request to sit yesterday at 4 p.m., even though the chamber was in session, we got the authorization. Thanks to the courtesy of Senator Dupuis and Senator Carignan, the motion was put in the chamber. I was absent at that time, and they did it, so there is cooperation around the table to make sure we move. The decision is not only up to us. There’s the whip’s decision to allow us to sit outside the regular hours. If we sit in conflict, theoretically, with the chamber, we have to request the permission.
So we know exactly where we are going. I am as anxious as you to make progress. We have spent many hours on it.
On the other hand, we have spent many hours to understand what is at stake. Access to information, I won’t make a speech, has not been reviewed for 35 years. Even though we take two more hours to review an issue as fundamental as that, I think the seriousness of the issues warrants it. I have the greatest respect of the intent of the government to have it reviewed in one year or in five years. But I can give you a list of statutes whereby a review is commissioned for five years and that review has never been undertaken.
On the basis of my own personal experience, if we can do it correctly now, I would suggest that it’s better to do it now.
But, as I say, I won’t be there when you will be initiating those reviews. But I think we are concerned and I received the point of view of Senator Carignan and the anxiousness of Senator Ringuette. We will review the issue at steering next week, and we’ll advise in the context of our shared responsibility for the work of this committee.
Unless there are other questions in relation to that, I would like to come back to the main subject.
[Translation]
Senator Dupuis: I want to support you and go back to the main topic, which is your suggestion. Can we do so now? Yes?
[English]
The Chair: I have Senator Batters on this issue.
Senator Batters: It was about the possibility of meeting during the Senate sitting hours. I briefly wanted to let everyone know, as many of you I’m sure will know, that there are many other committees in the Senate right now that are sitting during — not just the Energy Committee that I know Senator Carignan is on, but I know that it has been a difficult thing to even schedule subcommittee meetings and things like that of Internal Economy, which I’m the deputy chair of, because there are already right now in the Senate many committees that are meeting during sitting hours. So we might have a difficult time with that. Thank you.
[Translation]
Senator Dupuis: I want to address the main issue. I don’t think that it’s a matter of three hours or six hours necessarily, because three hours may not be long enough. However, can we ask the Information Commissioner to make herself available for the rest of our work so that we don’t need to ask her all the time?
[English]
The Chair: That’s a very wise suggestion. I would not want to take the blame for her not being here. There is somebody from her office in the room, but we would want to have her accessible all the time for clause-by-clause consideration and even the observations, because we might even have questions. Not the commissioner herself all the time maybe. For the testimony on that very issue, I would suggest that she be there with her legal adviser, but somebody in her office that would be able to answer questions, as we have benefited from the Treasury Board representative and the Department of Justice.
[Translation]
Senator Dupuis: Perhaps we should inform her of the amendments that we want her to comment on. I want to reiterate the request that I made yesterday to obtain Senator Carignan’s amendments so that we can at least inform her. I know that I’m forcing your hand with my request. We were talking about the importance of being effective. If we could at least let her know that we’re reforming the appeal system in relation to the current system, it wouldn’t be a bad idea to bring her up to speed so that she can prepare accordingly.
Senator Carignan: The second point that I wanted to make concerns Senator Dupuis’ comments about the commissioner’s availability. The other day, the amendments proposed by Senator Ringuette raised many issues. If we could benefit from her presence for the rest of the study, it would be ideal.
[English]
The Chair: I will certainly be your spokesperson to make sure that the commissioner, of course, will have the opportunity to read the minutes of the debate that we have had this morning and the other debates we have had in relation to the other amendments — not to reopen them but to apprise her of what we have been doing and make sure she would be available, or have her representative with the capacity to answer legal questions, or questions related to the responsibility of the commissioner, be available for the next meetings. We will have to make progress and immediately have answers as we have benefited from Treasury Board and Department of Justice. I will do that.
[Translation]
Senator Dupuis: When you said that your second point was in line with my comment, does it mean that you can provide a response? Can you share the amendments so that she has the chance to properly prepare?
Senator Carignan: The goal isn’t simply to properly prepare. The issues of concern are quite well known. In terms of writing, it’s difficult to commit because things are changing. If Senator Pratte were to decide to withdraw his amendment, I would do so as well. Some things are changing. It’s difficult to say in advance what will be proposed. In any case, I’m not the only one here either. The other senators also have amendments.
[English]
The Chair: Is it agreed, honourable senators, that we stand the consideration of Senator Pratte’s amendment pending the testimony of the Information Commissioner and her legal adviser immediately at the next meeting?
Hon. Senators: Agreed.
[Translation]
Senator Dupuis: Only with regard to Senator Pratte’s amendments?
[English]
The Chair: Back to the issue that was raised this morning, which is essentially the legal implications for the functioning of the Information Commissioner’s office on the proposals of Senator Pratte and, of course, all the other arguments we have been putting forward in relation to the de novo system, as the bill proposes to maintain. Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chair: Thank you.
Then we will move on to clause 19. There is, as I understand, a government amendment in relation to that clause. I think, Senator Ringuette, you have the text of the amendment. It’s PR10.
Senator Ringuette: It refers to PR10 and it’s a drafting error in the French version. So we’re adding “de l’institution” in French.
[Translation]
Senator McIntyre: You’re at PR9?
Senator Ringuette: Not, I’m at PR10.
Senator McIntyre: I have a PR9 and a PR10.
Senator Ringuette: PR10 was distributed this morning. I’ll read it, Senator McIntyre, to bring you up to speed. The amendment reads as follows:
That Bill C-58, in Clause 19, be amended by replacing, in the French version, line 27 on page 13 with the following:
prévu à l’article 41, il signifie au responsable de l’institution
[English]
The Chair: Do all senators have a copy of the amendment? We’ll make sure. We’ll circulate it immediately.
[Translation]
Do you have it?
[English]
Senator Ringuette: It’s correcting a drafting error in French.
[Translation]
We’re adding “de l’institution.”
[English]
The Chair: PR10. We have the English and the French on the same page.
[Translation]
Senator Ringuette read and proposed the amendment.
[English]
Are honourable senators ready to vote on this suggestion, which is essentially a grammatical or typographical omission?
Hon. Senators: Agreed.
The Chair: Agreed.
We will then move to clause 20. Clause 20 has no amendments.
Senator Ringuette: I would like to bring to your attention that we have skipped PR9. So if we could —
The Chair: They are consequential with PR5, but PR5 has been stood on clause 16.
Senator Ringuette: So you want to stand this one, too?
The Chair: Yes, it would be more appropriate, I think, to stand that one. I have it on my register and I know that when we count this, I will ask the question for honourable senators for the consequential amendments.
Senator Ringuette: Agreed.
The Chair: I move to clause 20. I have no amendments at this stage, unless honourable senators want to draw my attention to one. I’m ready to put clause 20 to a vote.
Shall clause 20 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Thank you.
Now we move to clause 21. I have Senator Pratte with an amendment, but I think that since we have stood the other one, I will stand that one. I would make the same comments that I made to Senator Ringuette earlier on.
Then we have Senator Ringuette with an amendment on clause 21. Is clause 21 carried? No? We’ll stand it also to the issue related to the previous amendments.
Then we move to amendments to clause 22. In clause 22, I understand that the government has an amendment. It’s PR11. I will ask the same question.
Do senators have a copy of the amendment numbered PR11? I don’t see any hands up, so everybody has a copy. Senator Ringuette, would you like to move the amendment? We are on page 14, as I understand, clause 22.
Senator Ringuette: Yes. The amendment reads as follows:
That Bill C-58, in clause 22, be amended by replacing lines 26 to 38 on page 14 with the following:
22 Section 46 of the Act is replaced by the following:
So it’s replacing the section because this motion would amend clause 22 by deleting the duplicate amendment to section 46.
The Chair: Any questions in relation to that amendment?
[Translation]
Senator Carignan: I don’t understand the amendment.
[English]
The Chair: Ms. Naylor, would you come to the table, please?
The Chair: Could you please explain why this amendment is being sought by the Treasury Board?
Ms. Naylor: Thank you. I would say first that this amendment is consequential to something that will be considered a little later, an amendment to clause 63 that’s being proposed. The effect of the amendment to clause 63 would be to change the coming into force date for the Information Commissioner’s order-making power. This one aligns with that amendment. That amendment would bring the Information Commissioner’s order-making power into force upon Royal Assent of Bill C-58 instead of now. Bill C-58 proposes that would occur one year after Royal Assent of Bill C-58.
The Chair: We are aware of the minister’s commitment in relation to that.
Ms. Naylor: That occurs in a different amendment, but if that change is made, then the duplicate provision that’s now in Bill C-58 at this point would no longer be required. One provision was to bridge the one-year period between Royal Assent and the coming into force of the order-making power.
The Chair: Yes, we have that in the letter of the minister. It’s very clearly stated in the letter of the minister that has been appended to our proceeding.
Senator Batters: I’m sorry, could you please explain that again? I was a little confused by what you were saying and why it’s coming at this late date. If you could please explain that again, I’m sorry. It’s a lengthy meeting and a detailed discussion.
Ms. Naylor: I’m going to turn to the section of the bill. You’ll see at the bottom of the page 14 and the top of page 15 that there are two sections 46. The reason for that is because the bill proposes right now that the order-making power would come into force one year after Royal Assent. So there’s a reference here to a provision related to the order-making power, or to the current authorities of the Information Commissioner, which would be needed for that one-year period. If the order-making power is brought into force upon Royal Assent, then that reference is no longer needed because her authorities change upon Royal Assent.
The effect of this proposed amendment is to delete the first section 46 because only the second section 46 would be required.
Senator McIntyre: In other words, you’re getting rid of a paragraph?
Ms. Naylor: That’s correct.
Senator Batters: I’m just wondering how the Government of Canada didn’t realize until this late stage, today, that that was required.
The Chair: As I understand, it’s a policy decision of the minister. If I remember well, and I stand to be corrected by Ms. Naylor —
Senator Batters: Minister Lametti?
The Chair: No, the Treasury Board. In the last letter we received from the Treasury Board chair, Ms. Philpott — and it is appended in our record — there was criticism that the order-making power of the commissioner will come into force only one year after Royal Assent. As I understand, the Treasury Board has reviewed that proposal and is now ready to have the order-making power of the commissioner implemented at the date of the Royal Assent. That’s essentially the purpose of this amendment. That’s the way I understood it from reading the letter of the minister.
Senator Batters: I understand. The reason I was asking about Minister Lametti is a lot of this section refers to solicitor-client privilege and that is the sort of thing that I thought maybe the justice minister —
The Chair: No, it pertains essentially to the Treasury Board policy decision. Am I right?
Ms. Naylor: That’s correct. The bill has been in the process for quite a significant period of time. Initially the understanding with the Office of the Information Commissioner was they would need time to prepare for the coming into force of the order-making power. The new commissioner has indicated through her letter to the president — I think the committee has a copy — that she’s seeking the coming into force; she doesn’t need that period of time.
The Chair: We had a question put to her in relation to that when she appeared.
Senator Batters: Minister Philpott never appeared, but it was the commissioner you were speaking about?
The Chair: Yes. I mentioned the commissioner.
Senator Batters: Yes, thanks.
[Translation]
Senator Carignan: I understand that there’s repetition. I understand the overlap issue and why we’re removing one and leaving the one on page 15. However, the essence of the amendment is “despite any other Act of Parliament.” There are still charter issues. The right to counsel and cabinet confidence are significant. I gather that this amendment to the bill would give the agency access to cabinet confidence items and even to items related to solicitor-client privilege, which is guaranteed? Would the Federal Court or the commission have this access? Only the Federal Court?
[English]
Ms. Naylor: I’ll need to confirm that as well. This relates to the powers of the Federal Court when it’s performing its functions under the act.
[Translation]
Senator Carignan: This doesn’t result in the Information Commissioner having access to the content of items covered by solicitor-client privilege or cabinet confidence.
Senator Dalphond: I want to raise a point of order, Mr. Chair.
The witness is here to explain why we should eliminate the duplication because the transitional measure is no longer necessary. However, I think that the witness is being asked to speak about the substantive issues that Senator Carignan raised with previous representatives. These issues concerned the scope of solicitor-client privilege and what’s at stake here, if I recall correctly. We’re not there yet. We just need to decide whether to remove the duplication, which is necessary because there’s a transitional period for the application of the legislation.
Senator Carignan: If you remember the question, you may remember the answer. Can you remind me of the question?
Senator Dalphond: We discussed the matter. One response concerned the issue we’re talking about here. The solicitor-client privilege of the government and the agency can be protected. If the government releases records to the public, it obviously waives part of the solicitor-client privilege, given that it makes the records available to the public.
Senator Carignan: I don’t think we’re only referring to solicitor-client privilege related to the institution.
Senator Dalphond: I would need to check the transcripts. However, I think that’s basically what we said at the time.
Senator Carignan: I think that it was much broader than that.
[English]
The Chair: Do you get the question from Senator Carignan?
Ms. Naylor: I believe so. You’re wondering whether this has the effect that has been discussed previously. There are other provisions in Bill C-58 that relate to solicitor-client privilege. This one is not the direct provision on that point. That occurs elsewhere in the bill. This discusses the powers of the Federal Court when it performs its functions under the Access to Information Act. There are other provisions that do address solicitor-client privilege and the Information Commissioner’s access to those records.
Senator Batters: I have a couple of questions about the portion that is meant to be remaining, if this particular amendment from the government goes ahead. Section 46 is at the top of page 15. I notice that there is a small difference between that one and the previous section that’s proposed to be deleted. In line 6 on that page, section 42 is missing, whereas it is on the other page. Is that deliberate or is that an error?
Ms. Naylor: Thank you. That is in fact the substantive change between one and the other. The reason is that once the order-making power comes into force, the Information Commissioner would no longer have the authority that’s set out in 42 because it wouldn’t be required anymore. That’s something she would need. It’s an authority for her to initiate the review in Federal Court. So once she has the order-making power, the scheme changes and it’s then up to a government institution to initiate a review.
That is the change. That’s the piece that would be substantively affected between the two paragraphs.
Senator Batters: All right. I have a further question, a grammatical question. Sometimes when we see only a portion of something, it doesn’t make grammatical sense but it may in the larger portion. On line 5, in that same section, it states, “. . . in the course of any proceedings before it arising from an application. . . :
I’m wondering if the word “arising” is grammatically correct there. Should it be “arises” with “es” at the end? I don’t know, but I’m wondering if that’s a grammatical mistake there. It is in both, but it doesn’t make sense to me. The provision —
The Chair: It is at line 5 —
Senator Batters: Page 14 at the end of the page but the provision on page 15 at the top of the page is proposed to be capped; they have the same potential grammatical error.
Ms. Naylor: Perhaps I could assist by reading it out in a way that I hope would make it a bit little clearer, just that section?
The Chair: Go ahead.
Ms. Naylor: “. . . the Court may, in the course of any proceedings before it arising from an application under section 41 or 44 —”
Senator Batters: I see what you mean. It is the court. It’s not a part of the phrase “before it arising.” Okay. I see. That does make sense.
The Chair: It’s linked to the previous section of the phrase and not “it arises.”
Senator Batters: It’s where you put the pause in the phrase.
The Chair: Yes, there is a pause to make it understood.
Senator Batters: There is a comma missing, yes.
The Chair: Any other questions? Does the amendment, as proposed by Senator Ringuette, to clause 22:
That Bill C-58, in Clause 22, be amended by replacing lines 26 to 38 on page 14 with the following:
22 Section 46 of the Act is replaced by the following:
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 22, as amended, carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division.
We will move to clause 23. I said on division.
[Translation]
Senator Boisvenu: I was asked to give notice at 12:30 p.m. because people have meetings.
[English]
The Chair: Absolutely. The next clause has no amendments. So we will leave on a positive note, Senator Boisvenu.
[Translation]
Senator Boisvenu: Good. I’ve done my part.
[English]
The Chair: Shall clause 22 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division.
We will move on to clause 23. Shall clause 23 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: On division.
We are at clause 24, but it is a consequential amendment, so I will stand it.
We now move to clauses 25 to 30. There are no amendments to that group of clauses.
Shall clauses 25 to 30 carry?
Some Hon. Senators: Agreed.
The Chair: Unless you have an amendment, senator.
[Translation]
Senator Carignan: I’m wondering whether there could be consequential amendments with regard to our future discussion because we’re talking about court orders. I didn’t have time to check whether we were moving towards a judicial review process as opposed to a—
[English]
The Chair: The clerk or the chair has received no consequential amendments to the proposal of Senator Pratte.
[Translation]
Senator Carignan: I know, but I don’t know whether... Depending on our choice, can it affect this portion?
Senator Pratte: It wasn’t identified in the original amendment. However, we decided to meet with the commissioner and see whether we should adopt one solution or the other. Maybe it would be more prudent—
Senator Carignan: Or a joint solution.
Senator Pratte: Yes. I don’t know.
[English]
The Chair: Since we have no amendments and Senator Pratte has not considered that there was a needed amendment in relation to that group, we could always come back if there is a consequential amendment. In fact, it’s my intention to request the authority of the committee, if there is a consequential amendment that is dropped or lost, that we have the capacity to come back on it because there are consequences to our decision. That’s why I feel comfortable asking clauses 25 to 30 be carried.
Shall clauses 25 to 30 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
[Translation]
Senator Carignan: If you’re comfortable, it’s fine.
[English]
The Chair: I understand that I have been called to order by the deputy chair of the committee, Senator Boisvenu.
We will be at clause 30 at the next meeting. It’s an amendment by Senator Carignan as I understand it. It has not been distributed yet. It will be distributed at that time.
Honourable senators, thank you. I remind you that at the next meeting we will have the opportunity to hear from the Information Commissioner and her legal counsel.
(The committee adjourned.)