THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, April 4, 2019
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 10:35 a.m., to give clause-by-clause consideration to Bill C-58, an Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.
Senator Serge Joyal (Chair) in the chair.
[Translation]
The Chair: Honourable senators, I am pleased to welcome you here this morning as we resume our work on Bill C-58, an Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts.
You will recall that, when we adjourned yesterday afternoon, we were at clause 36 of the bill, on page 25. Senator Dalphond had proposed an amendment and we had been informed that Senator Ringuette also had an amendment, which reflected the objectives that Senator Dalphond was seeking. I gather that Senator McCoy also wants to propose some amendments on the matter.
I will give each one of you the floor, so that we can see how we can speed up our study of this clause.
Senator Dalphond: It was good to sleep on it. We consulted, and here is what we decided: My amendment was introduced in March. The amendment proposed by Senator Ringuette on behalf of the government is from April, so it is more recent. I believe that it achieves consensus among our colleagues, because it addresses the concerns that Senator McCoy raised at the time. Consequently, she is content with the government’s proposals. I am very satisfied with them myself. I therefore propose to ignore my proposal and to study the more recent ones that address the concerns.
[English]
The Chair: Do I have the concurrence of honourable senators to allow Senator Dalphond to withdraw his amendments?
Hon. Senators: Agreed.
The Chair: Agreed.
[Translation]
So I invite Senator Ringuette to officially introduce her amendment and to identify it, so that senators know which amendment we are dealing with.
[English]
I would like to invite you to take the amendment proposed by Senator Ringuette that is identified as PR11.1.
[Translation]
So, we are dealing with amendment PR11.1, which takes the place of Senator Dalphond’s motion. Do all honourable senators have a copy of the amendment?
It’s numbered PR11.1. Everyone okay? Senator Ringuette, would you please officially introduce the amendment for the committee?
[English]
Senator Ringuette: I move:
That Bill C-58, in Clause 36, be amended by replacing line 13 on page 25 with the following:
the publication may constitute a breach of parliament-
[Translation]
The Chair: Do you want to provide some clarifications?
Senator Ringuette: I feel that people were uncomfortable with the words as they stand in clause 36, line 14.
Adding the words “may constitute” puts people more at ease, in my opinion. There is some discretion, just as we see in the Rules of the Senate.
[English]
Senator McCoy: Thank you. This does address my concern. My concern was that we were by statute implying that the Speaker of the Senate has a power that he does not possess and that we would condone that, and that is not something that I wanted to condone or encourage. This is an elegant and simple solution. It more or less mirrors our own process, whereby we do ask our Speaker to give an indication. In Latin we say, is there a prima facie case? It may, in fact, be a breach. So I think this adequately answers my concerns.
Senator Ringuette, I believe you negotiated this on our behalf with the Department of Justice and/or others and I appreciate your going to bat for us.
The Chair: Thank you so much.
[Translation]
Senator Dupuis: Senator Ringuette, I understand that this amendment to section 71.12 goes together with another amendment that deals with section 71.14, with the decision being final, that is. This time, the determination by the Speaker of the Senate will focus only on the issue of whether the publication of the information may constitute a breach of privilege. Is that what I am to understand?
Senator Ringuette: Exactly.
Senator Dupuis: One thing has to be clear, in my opinion. Our concern was to make sure that we are not looking to increase the powers of the Speaker of the Senate by legislation of this kind. In that sense, this solution is not satisfactory and it should be looked at again when the act is reviewed. In other words, I believe that we will have to monitor the evolution of the discussions about this act because I am going to continue to be concerned by the fact that the Speaker perhaps has a new power to judge whether the publication of information may constitute a breach of parliamentary privilege.
[English]
The Chair: If I may risk a comment to your questioning.
[Translation]
At the moment, the Speaker is responsible for deciding whether the four elements must be simultaneously brought together to constitute an appearance of privilege and to warrant a positive decision by the Speaker to subsequently refer the issue to the rules committee, as you know.
Senator Dupuis: Exactly.
The Chair: So, the Speaker’s power is very defined under provisions of the Rules of the Senate. The proposal as formulated by Senator Ringuette does not recognize the power of the Speaker to decide on the matter of privilege, as the bill did beforehand. The Speaker may give his or her opinion as to whether an issue could constitute a matter of privilege. This is a very important distinction that, I emphasize, corresponds to the powers of the Speaker as set out in the Rules of the Senate.
[English]
That is how I understand it. I think Senator McCoy can certainly follow that. We have been witnesses to many instances whereby the Speaker has been called to rule that there is a prima facie case, of course, and to refer it to the Rules Committee for investigation.
So I would suggest that your question is certainly appropriate and it could be the object of consideration by the Rules Committee at a point in time when, of course, the Rules Committee and that committee studying the privileges presently could be seized of that question and advise honourable senators about the followup on that. But I think adding that amendment confirmed the status of the Rules of the chamber.
[Translation]
Senator Carignan: That is more or less the point that I wanted to raise in connection with section 71.14. The suggestion is to amend section 71.14 by introducing the idea of “may constitute”. I understand your explanation, Senator Joyal, but, I am afraid that, in 10 years, the act may be quoted out of context and interpreted as making the Speaker of the Senate’s decision final. Memories may fade, and I am not sure that, when the subject comes up again in 10 years, people will think it appropriate to go back to the committee debates to determine the intent behind this amendment. I believe that we should finish this section with the idea that it must not infringe the Senate’s sovereign authority to make decisions. I am wondering whether the amendment will achieve the objective we are currently looking for.
[English]
Senator Batters: I do have a couple of questions about 12.1, but for now I think that for 11.1, that is a good compromise solution and I’m pleased to see it because I first raised this issue six months ago now. I looked back at when Minister Gould, the Minister of Democratic Institutions, was before us, and that was six months ago. It was clear at that point that the Minister of Democratic Institutions and, frankly, the senior Privy Council official who attended with her that day did not know about some basic differences between the Senate Speaker and the House of Commons Speaker. So in that respect, I am glad we could provide that helpful explanation to the Minister of Democratic Institutions about this important parliamentary institution, the Senate. I think we’ve provided a valuable service in that respect.
On this particular one, amendment 11.1, I thank Senator Ringuette on that particular point. And I am assuming that this is the Government of Canada’s amendment so this is one that will be accepted on the other side. Is that correct, Senator Ringuette?
Senator Ringuette: Yes.
Senator Batters: Thank you.
[Translation]
Senator Dupuis: I just want to be sure that I fully understand the distinction that the amendment is making. Senator Joyal, I completely understand your explanation of what currently happens pursuant to the Rules of the Senate. When a matter of privilege is raised, the Rules of the Senate have a well defined procedure. Here, we want to add something outside the Rules of the Senate. That is that, when the Speaker looks into the issue of whether the publication of information described in section 71.12, either collectively and affecting all senators or individual to any one senator in particular, he or she will make a decision under this legislation that publication may constitute a breach of parliamentary privilege. That is not within the meaning of the Rules of the Senate, which determine whether there is a prima facie case of breach of privilege and whether the procedure to study the situation at the rules committee must be followed. What we are saying here is that we are putting a parallel system in place. The Speaker will have the power to find, after an investigation, that publishing the information may constitute a breach of privilege.
There is no link between the decision that something “may constitute” a breach and the parallel procedure in the Rules of the Senate. When we ask the Speaker to make a decision, is there a breach of privilege? The matter is referred to the rules committee. I just want to make sure that the objective to not give the Speaker of the Senate new powers is achieved by the amendment before us.
Senator Boisvenu: In the ideas of “would constitute” or “may constitute”, there is an element of doubt. In “may constitute”, there is an element of doubt. In “would constitute”, there is an element of certainty. In my opinion, we are adding to the Speaker’s power.
Senator Carignan: We are putting the Speaker of the Senate on the same footing as the Speaker of the House, although we know that their powers are different. When we say “is defined particularly”, it suggests that the decision of the Speaker of the Senate would be final and we should basically just amend our rules so that they correspond to the new act. I do not believe that is the intention of anyone here. I think we have to rework this section.
Senator Ringuette: We should refer to the written documents sent to us by the Senate’s law clerk and parliamentary counsel. In his analysis of Bill C-58 as it was written, he did not modify the responsibilities of the Senate or the Senate’s rules committee. In addition, he testified before us. I submitted this amendment after the discussion that took place around this table. It is possible that it removes the final responsibility, if you will, from the Speaker, as described in the Rules of the Senate. Mr. Chair, I think we may have a possible solution — to repeat what Senator McCoy said last evening — that complies with the Parliament of Canada Act and the Rules of the Senate in terms of the Speaker’s powers.
The Chair: I am going to read the section of the Rules of the Senate that recognizes the power of the Speaker. It is section 13-5(5). “The Speaker shall determine whether a prima facie question of privilege has been established. The Speaker shall give the reasons and cite any rules, practices or authorities on which the ruling is based.” It goes on:
13-6 (1) When a prima facie question of privilege has been established, the Senator who raised the matter may immediately move a motion to seek a remedy or to refer the case of privilege to the Standing Committee on Rules, Procedures and the Rights of Parliament for investigation and report.
[English]
I’ll read it in English also as both help to understand the substance of the power of the Speaker:
13-5.(5) The Speaker shall determine whether a prima facie question of privilege has been established. The Speaker shall give the reasons and cite any rules, practices or authorities on which the ruling is based.
13-6.(1) When a prima facie question of privilege has been established, the Senator who raised the matter may immediately move a motion to seek a remedy or to refer the case of privilege to the Standing Committee on Rules, Procedures and the Rights of Parliament for investigation and report.
In other words, the Speaker doesn’t decide on the substance of the question of privilege. He decides if there are enough factors present — which are the four conditions we all know — and, if they are all concurring to be in the question raised, then he refers for adjudication the final decision to the Rules Committee.
[Translation]
Senator Carignan: No decision of the Speaker is final. Today, we may be passing legislation that says that his decision on prima facie would be final. That is the problem.
The Chair: I am thinking about what you are saying.
Senator Carignan: We are deciding whether a matter of privilege must be referred to the Standing Committee on Rules, Procedure and the Rights of Parliament, accepting that the decision may currently be the subject of an appeal in the Senate.
The Chair: Exactly.
Senator Carignan: According to the bill, that decision would be final, so it could not be subject to an appeal.
Senator Dupuis: Under the Rules, could you tell us whether the power of the Speaker of the Senate, as set out in section 13-5, is exercised when a matter of privilege has been raised by a senator? We are talking about something else here: whether the Speaker of the Senate, or the House, as the case may be, were to find that publishing information “may constitute a breach” of parliamentary privilege. No one here brought up the issue of privilege. The Speaker has the authority to examine the matter on his own initiative and to find that publishing information “may constitute a breach” of privilege. That is why I am saying that we are moving away from the framework defined in the Rules of the Senate. If a matter of privilege is raised in connection with a more general situation that is outside the framework of the Rules of the Senate, we have to deal with it in Bill C-58. It is not the same thing.
The Chair: Not at all.
Senator Dupuis: Basically, they are two different points of law.
The Chair: If the Speaker comes to the conclusion that publication could be a breach of privilege, he makes a decision that, theoretically could be appealed by that particular person or by another senator who feels that it is not a breach of privilege and that the information should be published. I see clearly the kind of situation we could end up in.
The Chair: For example, in a legal proceeding or where a request for information is submitted and the Speaker decides to allow it to be published, that could be a breach of privilege. Another senator could take the opposite position. So how are we going to resolve that difficulty between two opposing opinions? I am just asking the question. I do not want to give you the answer right away. Of course, I want to hear what senators have to say.
[English]
Senator Batters: Regarding the opinion that was provided to us earlier by Michel Bédard — perhaps it was translation that didn’t completely come through — he wasn’t the Senate Law Clerk. He was the acting deputy law clerk for the Senate at the time and he’s since gone to the House of Commons. I just wanted to make that point. Frankly, on that, I disagreed with his opinion that he provided and I expressed that that day for a number of reasons.
When I expressed those comments earlier today, I was talking specifically about PR 11.1. I might have some of the same concerns that Senator Carignan is expressing on the amendment 12.1. I at least want to have some questions answered about this final determination comment. I just wanted to express that my comments earlier were confined to 11.1 because I do have some questions about whether this amendment may go far enough or it may not, on 12.1.
Senator Dalphond: I think I agree with Senator Batters that we are reading 11.1, but I guess, in order to properly understand, I guess we should read 11.1 with two other amendments, PR 12 and PR 12.1.
PR 12.1 says that a decision “. . . may constitute a breach of parliamentary privilege or compromise security of persons, infrastructure or goods is final for the purposes of this Part.”
It is only for the purposes of the act that the final determination will be made. It has no bearing on the working of the Senate and the Rules of the Senate and other pieces of education. It is only for the purposes of this access of information.
Senator Carignan: Sure.
Senator Batters: That’s fine.
Senator Dalphond: It’s only for access or denial of access according to this piece of legislation not to access according to CIBA or access according to a decision of the Senate.
The Chair: I think that both amendments have to be read simultaneously.
[Translation]
Senator Pratte: As I am not a law clerk, I would rather find a solution. If I understand correctly, the objective of section 71.14 is to ensure that decisions in the matter cannot be appealed.
To allay the fears, what if we said something like “the decision of the Speaker of the Senate and House of Commons is final, subject to the regulations of each chamber”. I repeat that I am no law clerk, but that’s the spirit of it. In other words, if we included that it is subject to the rules of each chamber, the Rules of the Senate would apply. We all know the rules of the Senate.
Senator Carignan: Given that the role of the Speaker of the House is different from the Speaker’s role in the Senate, we should say “the decision of the Speaker of the Senate or the House of Commons, or their designates, is final”. Rather than talking about the Speaker of the Senate, we should talk about the Speaker of the Senate or his or her designate. If the Rules of the Senate say that the Speaker plays a role and the Board of Internal Economy makes a recommendation at the end, that, at very least, follows the process.
The two chambers have different powers and, in this clause of the bill, they are being considered at the same level. That is where the confusion lies. If I recall correctly, the law clerk told us that his opinion was as good as anyone else’s, in the sense that the issue can be debated by two lawyers until such time as it has been decided at the Supreme Court.
Senator Ringuette: The House of Commons has its Standing Orders of the House of Commons and the Senate has its Rules of the Senate. However, the Parliament of Canada Act is specific in that the Speakers of the two chambers are the guardians of parliamentary privilege. Here, we are talking about “proactive disclosure”. We are not talking about all the privileges of senators and members of the House of Commons.
In my opinion, adding “may constitute a breach of parliamentary privilege” is an elegant solution that complies with the Rules of the Senate. It recognizes the existence of a process inside the Chamber by which the Senate definitively acknowledges whether it is a privilege or not.
We also have to understand that, when Parliament is prorogued, the Committee on Rules, Procedure and the Rights of Parliament does not sit. There have been three prorogations in the last 10 years. If that were the situation, what will happen if a senator believes that publishing his expenses affects his parliamentary privilege? We have to allow for that flexibility and leave a door open for a senator who believes that publishing his expenses affects his parliamentary privilege.
We can go round and round, if that is what you want to do in the next two hours. However, I would like you to ask senators to make a decision, Mr. Chair.
[English]
Senator McCoy: It is my view that 11.1 is sufficient to the day because that is the operation. It says if the Speaker of the Senate finds that there may be a breach of privilege, then there is no disclosure. The difficulty arises in section 71.14 and if we are talking about them both at the same time, I think that a few words in addition would be helpful — I think Senator Dalphond has already raised them — which would be to the effect that the decision is final, solely for the purposes of this act. Then anybody who is trying to interpret this act would say it is an administrative matter; it does not affect a senator’s rights or question the privileges and it doesn’t affect the Senate Speaker’s powers in relation thereto. That would be my recommendation when we get to that section. I’m prepared to make an amendment to an amendment when we arrive at 12.1 put forward by Senator Ringuette.
[Translation]
Senator Carignan: I would like to go back to Senator Ringuette’s comments, who is assuming our intentions here. We are talking about the privileges of the Senate and of its Speaker. In my opinion, that matter is sufficiently important for us to spend a few minutes to really think about the consequences. I feel that it is far from clear. That is why I am asking Senator Ringuette to be careful in suggesting our intent. She is supposedly an independent senator; she is supporting a government bill and she is doing it very well. However I would not like her to assume our intentions.
[English]
Senator Batters: I have a couple of points since we are talking about both 12.1 and 11.1 at this point. Senator Dalphond’s comments about the purpose of this part, and that this is only pertaining to this act, that personally doesn’t comfort me a lot on this. I’m certainly no procedural guru, but I can certainly foresee times when access to information on some of these items could be a significant item for that particular parliamentarian.
We need to make sure that the wording is correct. Frankly, what we are dealing with here is that the Government of Canada, who drafted this bill, didn’t have a clue that there was even any differences between the two Speakers. It is good that they are trying to come forward with a solution, but we need to make sure that the solution actually respects the situation that we have in the Senate.
Actually on that point, I prefer, rather than for the purposes of this part or for this act, I actually prefer Senator Pratte’s suggestion about working in accordance with the Rules of the Senate or something like that, that actually recognizes something that we as the Senate, this particular parliamentary institution, have some control of, rather than the Government of Canada kind of dictating to us.
[Translation]
Senator Dupuis: I would like to talk about paragraph 4(b), the provisions that deal with privileges, immunities and powers in the Parliament of Canada Act, and I quote:
4 The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise:
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held…
However, what interests me here is paragraph (b):
(b)such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
Through the work of its rules committee, the Senate of Canada is in the process of examining this issue of parliamentary privileges. What is clearly emerging from the committee’s work and the testimony we have heard is that, if the Senate or the House legislates on the privileges — and I am not challenging their power to do so in the least — the privileges are inevitably restricted in the way the bill provides for in sections 71.12, 71.13 and 71.14. That is why I am saying that we have to be aware of what we are doing. That’s all. Thank you.
Senator Pratte: Mr. Chair, I will make my suggestion into an amendment that I am formally proposing. Wait a moment, I have to amend the amendment. So this is my announcement that I am going to propose an amendment to amendment PR12.1. We have to deal with the three at the same time. So, we would add, after the words “définitive, sous réserve des règlements dans chaque Chambre...”.
[English]
The Chair: In English, subject to the standing rules of each chamber —
[Translation]
Can you repeat that, please?
[English]
Senator McCoy: It has been modernized since I was a legislative drafter, but I think we refer to “Houses of Parliament” rather than chambers if you look at the Parliament of Canada Act, for example.
Senator Batters: Do we have anybody here who is a drafter?
Senator McCoy: Do we have a law clerk in the house?
Senator Batters: Why don’t we?
Senator McCoy: In English, I think it is “Houses of Parliament.”
The Chair: We will look into the Interpretation Act.
[Translation]
The Chair: Do we have any officials from the Department of Justice in the room? I believe we have Ms. Adair Crosby, Senior Counsel and Deputy Director, and Ms. Sarah Geh, Director and General Counsel, from the Department of Justice.
[English]
Are they in the room? Did you hear the question, Ms. Geh?
Sarah Geh, Director and General Counsel, Department of Justice Canada: I didn’t hear the question, but I apologize. I am not here in the capacity of legislative drafter so I’m not sure I will be able to answer the question.
Senator McCoy: Can we raise the subject of accurate drafting language to the chair when he does the whatever you call —
The Chair: I would, of course. The point you raised, senator, I would look into the Interpretation Act to identify the proper wording. As I say, as I am provided by the Library of Parliament representative, at page 48 — at paragraph 75.1 of the Access to Information Act, I read — you will be able to understand it quite quickly:
The administration of this Act shall be reviewed on a permanent basis by such committee of the House of Commons, of the Senate, or of both Houses of Parliament.
Senator McCoy: That was my understanding.
The Chair: That’s in the act itself, the way that each house is identified.
Senator McCoy: And what does it say in French?
The Chair: I’m sorry, senator?
Senator McCoy: And in French it says?
[Translation]
The Chair: In French, it says:
Le Parlement désigne ou constitue un comité soit de la Chambre des communes, soit du Sénat, soit mixte.
Senator Pratte: In the Parliament Act, it mentions both houses on a number of occasions. The expressions used are “des deux chambres”, and “both houses” in English.
The Chair: What about in the Interpretation Act?
[English]
If I may propose, gave that as an example. It states, for instance:
If Parliament has not been sitting on any of the first 15 days next thereafter, that Parliament is sitting and shall not come into force unless and until it is affirmed by a resolution of both Houses of Parliament.
So the words “Houses of Parliament” are in the Interpretation Act. I would understand that with the term “houses of Parliament,” we certainly in English express quite clearly the identity of both chambers.
[Translation]
This time, they did not use the word “mixte” in French, they said “both houses”. So that would be “les deux Chambres” in French. If I may, Senator Pratte, I will check whether, in legislative terms, we say “rules” or “standing rules” because “standing rules” is more precise.
[English]
Shaila Anwar, Clerk of the Committee: Standing orders.
The Chair: Standing orders. So, in French it would be — subject to the rules and standing orders.
Ms. Anwar: To the rules and standing orders of both.
[Translation]
The Chair: In French, that would be “sous réserve des règlements des deux chambres”, and, in English
[English]
Subject to the rules and standing orders of both Houses of Parliament, according to the vocabulary that is used in the Interpretation Act.
Senator McCoy, I’m answering your question.
Senator McCoy: That’s very good, but I think that we have senatorial orders, orders made by the Senate that are not standing orders. We have some that are standing orders. The Rules themselves are a standing order. But the order to refer Bill C-58 to this committee in 19 — sorry, 2018 — it seems like 1918 —
Senator Batters: I think it might have been.
Senator McCoy: But it’s not a standing order.
The Chair: It is the vocabulary that has been given to me by the clerk. And if you want, with your authorization, of course, I would ask her maybe to answer that question.
Senator McCoy: I think we should clean up the drafting language and we should authorize you to have that authority.
The Chair: I could do that. Of course, I understand quite clearly that the minutes are there for us, to look into it, to be sure that we would use the appropriate vocabulary to refer to the rules and/or standing orders of the Senate.
[Translation]
The rules and other instruments of the Senate and the House of Commons.
Can you repeat that, Senator Pratte? I would like to find the place where you are proposing to insert the sentence. We will consider that as well. Amendment PR12.1 is not on the table yet. I will ask Senator Ringuette to propose it, because it is a subamendment to an amendment we do not have before us yet.
Senator Ringuette: You want us to deal with the three at the same time.
The Chair: I will ask for votes in sequence to make sure that we have a majority, but it is important to have them all on the table at the same time.
[English]
Senator Ringuette: That Bill C-58, in clause 36, be amended by replacing lines 30 to 32 on page 25 with the following:
Speaker that a publication may constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final for the purposes of this Part.
[Translation]
The Chair: Could you please introduce your subamendment, Senator Pratte?
Senator Pratte: I will do it in French, because I do not know where the words would go in the English version.
Senator Carignan: That is your constitutional right.
Senator Pratte: Yes, but I would have liked to say it in English as well. The text of the amendment would say this:
71.14 Pour l’application de la présente partie, est définitive la décision du président du Sénat ou de la Chambre des communes — ou celle de son délégué — portant que la publication pourrait porter atteinte au privilège parlementaire…
[English]
The Chair: “Subject to the rules and standing orders of both Houses of Parliament,” after the word “final.”
[Translation]
In the English version, it might read as follows:
[English]
Speaker that a publication may constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final, subject to the rules and standing orders of both Houses of Parliament for the purposes of this Part.
Senator Gold: I would put it at the end, I would think: “. . . for the purposes of this Part, subject to. . . ”.
[Translation]
Senator Carignan: We are talking about both Chambers and the rules of each.
Ms. Anwar: In English, we refer to the “Standing Orders of the House of Parliament”. In French, that’s the Règlement de la Chambre des communes. In the Senate, we say the Règlement du Sénat, and the “Rules of the Senate”.
Senator Carignan: We have to specify the rules of each. It must not be interpreted as the two together.
Ms. Anwar: That is why, in English, we refer to the “Rules and Standing Orders” whereas in French, the word “Règlement” works for both.
[English]
Senator McCoy: We defer to you on the question of standing orders in the House of Commons but, in the Senate, I’m prepared to say it should be subject to the rules and orders of the Senate. I defer to you on the House of Commons.
The Chair: I will propose to you a solution to the question mark that might be left in the minds of honourable senators, to be sure that the wording is exact: It will be submitted to the Law Clerk to be sure that the words are exactly the ones that we have in mind.
Senator Batters: I have a couple of questions on that for Senator Ringuette. Because this is an amendment to what the government is proposing, do you have any information or could you find out for us whether this would be something that the Government of Canada would accept? It would be a shame to go through all of this and the Senate ends up passing it, but then the House of Commons kicks it back to us and rejects it — without reason even. We would want to know that the Government of Canada would find this acceptable or at least know that they wouldn’t find it to be unacceptable, and what their reasons would be.
Senator Ringuette: Thank you for your question, Senator Batters. I will not pretend that I can answer for the House of Commons. They will give the answers that they want to give. I understand; I am sponsoring the bill, moving it forward.
My sense is that this is additional clarification with the sub-amendment proposed by Senator Pratte. If that provides a sense of security for the members of this committee in regard to the rules that we have in the Senate and in regard to our practice for the process of establishing parliamentary privilege, you know, I don’t see that as a major obstacle. I don’t see that, but as I reiterate, I cannot speak for the House of Commons. I can only give you my sense of things. The act wants to provide more information and this particular part is for proactive disclosure. It relies on the act of Parliament, the responsibility that, ultimately, the Speakers of the two houses are the guardians of privilege, subject to the rules that each chamber has put in place. I don’t see a major issue.
[Translation]
As Senator Joyal said, he will tidy up what is required.
[English]
The Chair: The major question that could lead the government to refuse — I’m talking of the government, not the House of Commons — would be if the wording would bring uncertainty on the interpretation of the substance of the act. I don’t think it brings uncertainty for a court to interpret that section or for the administration to interpret that section.
Senator Batters: I frankly think it brings more certainty, which is preferable.
The Chair: Exactly, exactly.
Senator Batters: I also wondered if there might be someone, perhaps an official from the Department of Justice, who might be able to tell us, from a legal basis, whether this particular wording that we are discussing right now might be the acceptable legalistic wording. Perhaps we could have that official return to the table to answer that?
The Chair: Madam Geh, could you return to the table, please, if you are in a position to answer the question from Senator Batters? Did you hear the question from Senator Batters?
Ms. Geh: No, I’m sorry. Could you ask it again?
Senator Batters: Yes. We are discussing this particular amendment 12.1 as modified by Senator Pratte’s sub-amendment which would add in — what was it again — “subject to the Standing Orders of the House of Commons and Rules of the Senate“ — or something like that — “for the purposes of this Part.” We have that particular wording that we are adding in, about being subject to the Rules of the Senate and the Standing Orders of the House of Commons. Would that wording be appropriate and proper from a legal perspective?
Ms. Geh: I am sorry. I don’t think I could answer that just because this is not our area of the bill. PCO has been the policy lead on this. I’m not familiar with the legal —
Senator Batters: Is there anyone from this large sea of officials that can answer those types of questions?
The Chair: Ms. Mary Rassi, Democratic Institutions in the Privy Council Office. You heard the question?
Mary Rassi, Democratic Institutions, Privy Council Office: Yes. I’m not a lawyer. From a legal perspective, I could not comment on that aspect of it.
Senator Batters: Can I just ask why, at a clause-by-clause meeting, we don’t have someone here to answer those kinds of questions for us? Don’t we normally have officials that can answer these types of questions? In my five or six years on this committee, we normally have people who can answer these kinds of questions for us.
The Chair: So you’re not in a position to answer. Would there be someone else with you who can?
Ms. Rassi: I was going to add something. We are trying to provide the best advice possible, and there was an additional amendment proposed for section 71.14 from Senator McCoy that has very similar language. We were hoping that maybe Senator Ringuette, if it’s appropriate, could read it or I could read it as well. It’s exactly what’s being discussed at the table.
The Chair: Senator McCoy, could you mention your amendment? I think it’s EM4.
Senator McCoy: I haven’t put this forward. It was an option that I didn’t think needed to be raised, but if you really want the full range of options in front of you before a vote, you can add another clause and say, “For greater certainty.” But I’m happy to go with Senator Pratte’s amendment and then rely on the chair to make sure that the legislative drafting is given a gold ribbon by the law clerk.
The Chair: For the information of all the senators —
Senator McCoy: It’s a gold star and a blue ribbon. I’m mixing it up.
The Chair: — Senator McCoy’s amendment referred to by the witness is, “For greater certainty, section 71.14 does not preclude any member of the Senate from rising on a question of privilege in the Senate, in accordance with its rules and orders.” That was the wording.
Senator McCoy: You do want “its rules and orders” in there.
The Chair: Rules and orders. As I say, that’s what we included in the amendment of Senator Pratte, and we will check if the word “standing” needs to be added or not, depending on the way it could be normally referred.
I retain your suggestion that you would allow the chair, with the concurrence of the steering committee, to look into the final wording to ensure it reflects what honourable senators around the table have been proposing as a preoccupation.
Senator Batters: I’m quite happy if we can come to a resolution on that. That would be great.
My question remains, though: Why doesn’t the Government of Canada, for this large a bill, have people here who can answer these kinds of questions for us on such a major bill, where frankly, the government is bringing so many of its own amendments at this final stage of Senate committee? This bill has been before the House of Commons for a long time and in front of the Senate for a lengthy period of time as well. Now they’re bringing amendments at the very final stages. Why don’t they have people here who can answer our questions?
The Chair: I see Ms. Naylor from the Treasury Board coming to the table.
Ruth Naylor, Executive Director, Information and Privacy Policy Division, Treasury Board of Canada Secretariat: Thank you. I understand the question and if senators wish to finalize the bill.
The challenge for us is we bring various expertise to the table. Not everyone, of course, can answer each specific question in some cases. So in this case, I think the specific question was whether we can assert at this moment for you, or provide comfort for you that a certain wording that’s being drafted as we speak is legally correct. For that to happen, we actually rely on expertise of legislative drafters and so on, so that kind of consultation can’t, in fact, be done on the spot.
We appreciate the intention that senators are bringing forward today, and we would have to go back and work with those who worked — there was a very large team of people working on this bill, but the legislative drafters do not appear at committee and do not attend at committee in order to support the committee’s procedures. Instead, we arrive before the committee with our policy expertise and experience — in my case, in the administration of the act — but we aren’t necessarily able to provide legal advice to the committee today.
Senator Batters: I’m just telling you that at this particular committee, my experience has been over the last several years that we don’t typically receive those kinds of answers. We normally have Department of Justice officials who are able to come to the table and then answer these questions for us so we can know if amendments, which are largely what the Government of Canada has drafted with a bit of a tweak here and there, if that’s going to meet legal principles as they’re applicable. It’s unfortunate and it puts our work in a delayed state. Thanks.
The Chair: If I might risk a comment, I don’t want to appear to defend the representatives of the various departments, but I would just point out that you will understand this bill is so complex that it would need an army of legal advisers from each department because it touches on a lot of elements within each level of administration.
But I hear your point. We should have found in the Privy Council somebody who has the legal capacity to answer a question that has legal implications. I will make sure that at the next meeting we will invite the representative with that capacity to come to the table.
[Translation]
Senator Ringuette: To reassure committee members about the language used, I discussed what Senator McCoy put in her amendment EM5 and, yes, the words “in accordance with its rules and orders” meet the objectives.
So, I believe that there would be no problem, according to the objectives that you and Senator Pratte described in the subamendment.
The Chair: The Chair and the two Deputy Chairs, with the assistance of the law clerks, are also involved in using the most specific words possible in a legal sense in order to achieve the objectives that we share around this table. Consistent with the committee’s commitment, we will make sure that the terms we use are the most appropriate.
Senator Dupuis, we are going back to the amendment to section 71.12, because I should call the question on the subamendment as soon as we get to section 71.14.
Senator Dupuis: Senator Ringuette, I agree that the expressions “conformément à ses règles et ses ordres” in French and “in accordance with its rules and orders” in English are acceptable. Can we agree to let the steering committee decide where it should be added to sections 71.12, 71.13 and 71.14, because Senator McCoy’s proposed amendment to section 71.15 is intended to apply to the three previous sections?
I am not sure that it was in section 71.14. My impression is that, if we put the amendment in section 71.12 to start with, all the rest will flow from it. Can we agree that, when the steering committee does the tidying up of this section — to use the expression that has become our tradition here — it could...
The Chair: Include it where the law clerks suggest it be put.
Senator Dupuis: I would like to tell the officials from the various departments here today that we are grateful for their presence, but I feel that the comment about having lawyers here to help the committee with its work is extremely important. First, because we are here to discuss the bill. You will understand that it would require a large and varied team of good law clerks. We also have to do the work for each of the sections of this bill. I feel that it is important for them to be here to help us.
[English]
The Chair: I understand that the views expressed have really identified the responsibility that the steering committee will have in relation to those amendments.
I will now proceed, honourable senators. Is it agreed that the amendment proposed by Madam Senator Ringuette, the first one in relation to 71.12, be carried?
Hon. Senators: Agreed.
The Chair: Agreed.
We move then to the next amendment of Senator Ringuette, which is identified at PR-12.1. It’s the amendment that refers to the purpose of this part plus the subamendment of Senator Pratte. I will invite the honourable senator to take a stand on the subamendments of Senator Pratte to the amendments of Senator Ringuette. That’s the way to proceed.
Honourable senators, is it agreed that the subamendment of Senator Pratte carry?
Hon. Senators: Agreed.
The Chair: Is it the wish of honourable senators to have the amendment proposed by Senator Ringuette carried?
Some Hon. Senators: Agreed.
The Chair: It’s PR-12.1, the one that states that:
Speaker that a publication may constitute a breach of parliamentary privilege or could compromise the security of persons, infrastructure or goods is final for the purpose of this Part.
That was the amendment of Senator Ringuette as amended by Senator Pratte. Is it the wish of honourable senators that this amendment, as amended, be carried?
Hon. Senators: Agreed.
The Chair: Agreed.
So we will then move on to Senator Ringuette number PR12. Senator Ringuette, could you move the next amendment, please. I think it’s a simple amendment, if I understand. It’s amendment PR12. It’s the one that refers to the delegate, which in French has been omitted. That’s why I said it’s a simple amendment, because it’s to make the French version similar to the English version in terms of wording. I remember Senator Batters having raised that issue.
Senator Ringuette, could you move the amendment, please.
[Translation]
Senator Ringuette: That Bill C-58, in clause 36, be amended by replacing lines 27 to 29 on page 25 with the following: “de la Chambre des communes — ou celle de son délégué — portant que la publication…”
This is to correct the French version of the clause.
[English]
The Chair: Any questions from honourable senators before I call the question? Are honourable senators in agreement with the adoption of the amendment of Senator Ringuette to amend the French version to make sure that it’s similar to the English one?
Hon. Senators: Agreed.
The Chair: Agreed.
[Translation]
Senator Carignan: Just a clarification. All Senator Ringuette’s amendments bear the note “confidence of the Queen’s Privy Council”. So I am assuming that they are not Privy Council confidences. Are they secret or not?
Senator Ringuette: They weren’t secret as far as I am concerned.
The Chair: They stop being secret at the moment they are tabled.
Senator Carignan: They are secret until more than two people are talking about them. I just wanted to be sure.
The Chair: Thank you for lightening the mood, senator.
We continue with the next amendment. I have an amendment from Senator McCoy.
[English]
It was the EM4, Senator McCoy. Do I understand that you have withdrawn that amendment?
Senator McCoy: I didn’t make the motion.
The Chair: But I have you —
Senator McCoy: No, we can skip over that.
The Chair: Thank you, senator.
We are going to move on then to clause 36, as amended. Are the honourable senators in agreement to adopt clause 36 as having been amended?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Agreed.
We move on then to clause 37. I have an amendment — I don’t have it in front of me — but there is an amendment from Senator Carignan. Could we have the amendment, senator. We are at clause 37 on page 26. C-12 is what with we have on the paper.
[Translation]
The Chair: Can you distribute it? Thank you. It is amendment C-12 in our list.
Senator Dupuis: Can I ask Senator Carignan if this means that there are 11 to come, if we are at amendment C-12 and he is going in descending order?
Senator Carignan: No.
The Chair: So I will invite Senator Carignan to introduce the amendment, to section 37 on page 26, after line 24. Do you want to formally introduce the motion, senator?
Senator Carignan: That Bill C-58 be amended in clause 37, on page 26, by adding the following after line 24:
(b.1) within 30 days after the end of the month in which a decision made by a minister is communicated to the public, the briefing materials or portions thereof relied upon for that decision when the information contained in those portions is otherwise available to the public;
The objective is to make public the information that a minister has used to make a decision, when that information or those documents are otherwise public. We have just seen a good example. We have Senator Ringuette’s documents bearing the note “confidential, cabinet secret”. They probably were a cabinet secret up to the time she tabled them. Now they are public. The proposal is that, when decisions are made by cabinet or by a Minister and they are based on information or documents that are otherwise publicly accessible, there should be a way to have access to them.
Having sat in cabinet, I have seen a lot of documents, memos and executive summaries from the Privy Council that contained a lot of public information and to which, under the cover of cabinet secrecy, it was impossible to have access, even though the information was public.
The Chair: I believe you put that question to the official from the Privy Council, if I remember correctly.
Senator Carignan: Yes.
Senator Dupuis: So that I can understand the proposed amendment, and we are talking about amending section 74 of the act, can you explain to me… Section 74 deals with documents that are in ministers’ hands and you talked about cabinet documents and ministers’ documents. So does your amendment deal with documents that are in a minister’s possession?
Senator Carignan: A minister, yes, but we know that those documents were previously consulted in cabinet.
Senator Dupuis: In your proposed amendment, you want to add a paragraph (b.1). What difference are you making between what is in Bill C-58, on page 26, line 17, in paragraph (a) of section 74, and what you want to add in paragraph (b.1)?
Senator Carignan: I think that paragraph 74(a) deals with what are called briefing notes. When a minister is appointed, that minister receives briefing notes on various issues at the beginning of the mandate, within 120 days following the appointment. My amendment deals with any decision of a minister and the documents used to make a decision and that are otherwise public.
Senator Dupuis: When you say that they are “otherwise accessible to the public” —
Senator Carignan: It’s whatever is public.
Senator Dupuis: Whatever has been made public.
Senator Carignan: So it’s information that is not secret.
Senator Ringuette: If it is not secret, why are you making this amendment? Why is Senator Carignan proposing this amendment, given that the documents have already been made public?
Senator Carignan: The idea is to find out from which information the decision-maker or the minister made the decision, meaning what information he considered in making the decision. In the decision-making process, the minister bases his decision-making reasoning on a collection of information or documents. If, in making his decision, he used information or documents that are public, why could one not have access to them?
Currently, even if the information or the document is public, cabinet secrecy is invoked. For example, as you have been able to see, when I asked the Minister of Justice quite simple questions on a number of topics, the replies were stock answers that everything is a cabinet secret.
Senator Ringuette: Anyway.
Senator Dupuis: I have a question for Senator Carignan. In paragraph 74(b) of the bill before us, Bill C-58, it says that ministers shall cause to be published, and I quote:
(b) within 30 days after the end of the month in which any memorandum prepared by a government institution for the minister is received by his or her office, the title and reference number of each memorandum that is received;
Theoretically, that would include the titles and reference numbers of the briefing notes used in support, if you will, or that a minister consulted when he made a decision.
I’m trying to see what that adds here. In other words, in the course of his duties, a minister has a certain number of decisions to make and a certain number of things to look at. In terms of decisions, I’m trying to imagine how this new paragraph you are proposing can be administered.
Senator Carignan: We are not going to be administering it.
Senator Dupuis: No, I know that, of course, but what I mean is that I understand that you don’t want to have just the titles and reference numbers, which is what paragraph 74(b) states.
Senator Carignan: Exactly.
Senator Dupuis: That being the case, isn’t what you’re asking rather to replace “the titles and reference numbers” by “the documents prepared for the minister”?
We are greatly reducing the scope of it all by saying “during which a minister’s decision is made public.” Paragraph 74(b) seems broader, in the sense that, as a minister carries out all his responsibilities, he has to publish the titles and reference numbers of the notes prepared for him in making a decision. That’s what this implies, not exclusively, but also in making a decision. That is why I was wondering about this.
The Chair: The two are different.
Senator Dupuis: There is a difference between titles and reference numbers, of course.
Senator Carignan: Not only between titles and reference numbers, but also in terms of the documents being requested.
Senator Dupuis: That is why I am asking whether what you want, instead of titles and references, is —
Senator Carignan: No, it’s not “instead”. This does not prevent me from having the titles and references, as paragraph 74(b) continues to apply.
Senator Dupuis: In other words, are we not needlessly adding a paragraph, when we could add “the title, reference number and briefing materials” to the existing paragraph 74(b)? Now, we’re making a distinction, and I’m not sure we need to indicate anything special to support a decision.
Senator Carignan: It’s because we are going beyond titles and references. We are talking about the content of the document. Let me give you an example. Memoranda to cabinet for decision-making can be, say, 10 pages long and, within those 10 pages, we can see the positions of the different parties involved on a particular issue. At that point, we may be talking about surveys. We may be talking about various factors that might lead the minister or cabinet to make a decision. That information is all in the public domain. If we make an access to information request for the memorandum to cabinet that would have been used to decide to issue an order in council to approve a pipeline, for example, we would then have at least the reasoning or part of the reasoning for the decision of the cabinet, the council of ministers, because we would know what public information the cabinet, the council of ministers, relied on.
Private, secret information will be redacted or removed, but at least we will have some of the public information that was used to make the decision.
Senator Dalphond: My question is for Senator Carignan. Senator Carignan, do you want them to publish documents that are public? The end of the sentence says the following, and I quote:
“... when the information contained in these portions is otherwise available to the public;”.
Is the word “not” missing from “is otherwise available to the public”, or do we want what is already otherwise available to the public to be made public?
Senator Carignan: Public or otherwise available to the public. The words “available available to the” can be removed, if you wish, but it can be otherwise public; the idea is that, if the information is not secret, it is not confidential and has already been in the public domain, it can be available to us.
Senator Dalphond: So they have to publish what is already public, but if the information has not been made public, they can keep it confidential, correct?
Senator Carignan: Exactly.
Senator Dalphond: So where is the transparency? I do not understand the objective, which is to make public what is already public and not to make public what has not been made public.
Senator Carignan: I want to know what the minister’s reasoning is. I want to know what he based his decision on. There could be external reasons. I want to understand the reasoning behind the decision. I want to see what public documents and information he used to make his decision.
Senator Dalphond: You just want to see the public documents on which the minister relied?
Senator Carignan: Well, I can’t see the secret documents.
Senator Dalphond: But if the minister relied essentially on confidential documents and partly on public documents —
Senator Carignan: There will be some missing.
Senator Dalphond: He will show you the tip of the iceberg, but he will not show you the iceberg.
Senator Carignan: Well, if you want to suggest that we waive cabinet confidence completely, make a proposal and I’ll see, but —
Senator Dalphond: I’m trying to understand what the objective is.
Senator Carignan: In some situations, we will see the tip of the iceberg, and in other situations we will have the iceberg, and perhaps a tip will be missing. It will depend on the nature of the decision made.
Senator Dalphond: Okay. Thank you.
[English]
Senator Gold: I’m having difficulty understanding the necessity for this. If it’s already available to the public, and one wants to know upon what publicly available basis, one can ask the minister in the House of Commons. A journalist can ask the minister.
I am concerned. We have passed a number of amendments, some of which I have supported because I think they really added something to the bill. That’s our job. But I think adding amendments that are not necessary slows down our legislative process, and I have difficulty seeing the added value in this particular case, so I am inclined to vote against it.
[Translation]
Senator Boisvenu: I don’t agree with what Senator Gold is saying, because there are true logical choices, A and B. B seems to me to be the period prior to the decision, as per Senator Carignan’s proposal; the decision is made, and not only is the decision made, but there are also the documents that were used to make that decision, documents that are rarely public. The decision will be public, but the documents that were used to make the decision or that were used for the discussion before the decision are rarely public.
Senator Gold: As I understand it, only publicly available documents can be published. So, by definition, they are public.
Senator Carignan: Yes, but knowing that information is public is one thing, whereas knowing that public information has been used by the minister and cabinet to make a decision is relevant. You say we should ask the minister. I hope you have seen that, with all the questions we ask ministers about talking points, it is like squeezing blood out of a stone. You cannot be so naive as to think that you will have all the pieces on which the minister or cabinet based their decision.
Senator Boisvenu: Let me give Senator Gold a practical example to help him understand. The federal government is responsible for managing threatened and vulnerable or endangered species. In the city of La Prairie, there is a beautiful subdivision under construction. I had an option on a house, but I couldn’t buy it because of a government decision. The developer invested $1 billion in infrastructure. They are mid-range homes. At one point, frogs were seen. They were striped chorus frogs, with which I am very familiar. I contacted the Ministry of the Environment and had problems for three years. Environmental groups were complaining that the construction of the new subdivision was putting pressure on wetlands. At one point, the federal government stated that the chorus frog was threatened and endangered. The real estate project then stopped when it was 80 per cent developed.
We knew that the government had made a decision, but we did not know why. The documents used to make the decision were not made public. The city, which was fighting with the environmental groups, and the people who were willing to invest did not know why the federal government had made that decision. It only said that the species is vulnerable and it is now endangered.
The minister makes a decision that is public. However, the documents, which are available electronically for people to search and understand the minister’s decision, are not made public in many cases.
The Chair: That’s not what the senator’s amendment —
Senator Boisvenu: That is what the amendment says.
The Chair: Yes, but to the extent that the studies that the government used for its decision, to conclude that the species was endangered, were public.
Senator Carignan: Yes, but there is a test and a certain level. For example, there may be a report from an organization or a biologist and the government may have relied on that report, and that report is in the public domain. At least the process is transparent.
Senator Boisvenu: We understand the decision.
Senator Carignan: We understand the decision and, if someone wants to challenge the credibility of the study, they have a tool at their disposal.
The Chair: Yes, but the study is not necessarily public.
Senator Carignan: No, but it is otherwise available to the public.
The Chair: I’m trying to make the connection with the objective you have —
Senator Carignan: Let me explain it right now. I understand your question. Let’s take a biologist, a professor in that situation who does that study.
The Chair: Yes, alright.
Senator Carignan: The question is: is the information otherwise available to the public? So the document is available. So if the person, the biologist or university professor, publishes the document or intends to publish it and does not keep it a secret, or the document is not confidential because it is not covered by professional secrecy, it is otherwise available to the public.
The Chair: The study could have been commissioned by the Minister of the Environment, a biologist or a laboratory, from an institution based on a contract with the Department of the Environment, if we assume that we are talking about that department. So the study was commissioned and it belongs to the department.
Senator Carignan: So at that point, the information is not easily accessible.
The Chair: There may be a confidentiality clause, a study conducted by that biologist or institution that in practice means that the decision has been made, but the study is not made public.
Senator Carignan: That’s right. The study is not otherwise available to the public and I will not get a copy.
Senator Dupuis: So you will not have achieved your objective, which is to find out the basis for the decision, because we can imagine that a minister who wants to examine all “for” and “against” positions on an issue will then commission a study that will not be made public. He will therefore give you the information from which he has studied all the studies that exist, the international, local and national reports, but his decision will be based on one or more studies that will remain secret — and you will not know that they have remained secret — and that will be the basis of the decision.
Senator Carignan: In some decisions, you could have access whereas in others, you cannot. If we are talking about a specific study commissioned with a confidentiality clause, it will not be available to the public, but if it is a general opinion that a biologist has expressed in the media and has decided to publish in an academic journal, the minister can say that the information is otherwise available to the public. So he says that he made the decision and that he considered such and such a study in his decision-making.
Senator McIntyre: The amendment is looking for more transparency and accountability from the government. I think we should keep in mind that the amendment is part of the provision. In fact, it is about part 2, the proactive publication of information and more specifically about the briefing materials that ministers shall cause to be published in electronic form. I fully understand Senator Carignan’s amendment. He wants more transparency and accountability from the government. That’s basically it.
Senator Boisvenu: My colleague has gone part of the way in terms of what I meant to say and add, except for the national security points. Earlier, I was telling you about a housing project. I worked at the Ministry of the Environment and Wildlife for 15 years. We had to overturn decisions in terms of harvesting deer and moose, and fishing quotas.
Before the minister made decisions, the documents were confidential, because we did not know whether the minister would make a decision at this or that level. So, in order not to frighten hunters and fishermen, we kept... However, once the decision was made and the minister had to justify it, he would make public the scientific documents on the basis of which a political decision had been made. When it comes to national security, those documents must remain confidential, even top secret. On a daily basis, when the minister makes decisions that affect the lives of people and economic development, those documents should be public in most cases, but they are not always made public.
They are public in nature, but they are not published basically because of the bureaucracy. This amendment will ensure that information will be more available when a decision is made so that the public can understand it.
Senator Carignan: The idea is to promote greater transparency. Senator Joyal, you have sat in cabinet before.
The Chair: That’s right.
Senator Carignan: I have sat in cabinet as well, and little information is purely confidential and secret. Most of the information is factual or from public documents. In my opinion, if we want an open and transparent government, we must, in 2019, make rational decisions for the well-being of the public. In this sense, the government has decided to publish the ministers’ mandate letters. This bill also includes briefing notes, all the questions asked during question period, all the documentation used to support the minister during question period. We are therefore moving towards the objective.
The Chair: Can I play devil’s advocate again, senator? Let’s imagine a situation where confidential information is leaked, disclosing a number of items related to a decision. I have some examples in mind, and perhaps you do too. What would lead the minister or the Prime Minister to make public the information on which a decision was based, when only part of it was made public?
Senator Carignan: That’s up to them.
The Chair: You understand.
Senator Carignan: Yes. I think it’s a judgment call. If the information has become available to the public because of a leak or violation of a rule —
The Chair: For example, a breach of the oath of confidentiality.
Senator Carignan: That’s right. If I were responsible for applying the law, I would probably not share that information. The courts will then decide whether or not the information will be published. That is why there is a review process, and the courts will apply the case law.
The Chair: Would you agree to our asking Treasury Board and Privy Council officials what they think of the proposal?
Senator Carignan: They can always tell us, but I think it’s more a matter of political orientation in the broad sense of the word than in its technical or legal sense.
[English]
The Chair: Would the representatives of Privy Council or the Treasury Board be in a position to comment on the proposal? As the senator has said, in terms of the policy orientation of this?
Ms. Naylor: Thank you. Was there a specific question that you wanted me to address, in terms of how this would fit with other aspects of the bill, or how it would work operationally?
The Chair: Yes, operationally. I would not say daily operation, but in the process of making information available to the public that would have been in the hands of the public already, by whatever means.
Ms. Naylor: I guess, as I read this, a couple of points come to mind as I consider it. The first is that in 74(b) right now, it is just the briefing note titles and reference numbers that are going to be released right now. Some institutions have begun to do that. The intent behind that is it is easier for requesters to then request the briefing materials themselves. In that process, the briefing materials or a portion thereof that are relied upon, any of the briefing materials that go to a minister, are then released. Within the application of the act, in terms of its exemptions, exclusions and so on. Essentially, it accomplishes the same thing without being proactively published. The list of briefing notes are always now going to be released within 30 days and then an individual can seek that information, whatever was in the briefing material.
If I send, for example, a briefing note to the President of the Treasury Board seeking approval to agree with an amendment made by the Senate, then all of the information that we provide in that briefing note could be sought by a request for the briefing note. That’s why we are suggesting the release of the tracking numbers. The individual would receive that. If there are references to cabinet confidences, those would be excluded as under the current act. Some advice may be excluded, but factual information is intended to be released in that situation. There would be no exemption that would apply.
That is the scheme that is presently there and I understand the intent is to make it so that the briefing notes themselves would be proactively published. I can advise that we did consider that approach and it may be something that we would have been thinking to look at again in the future.
We’ve been working for many months to get institutions ready to do the first step here — briefing note titles and tracking numbers — and trying to get systems into place. To do that is actually somewhat more complex than we anticipated ourselves, but they are very close to having that underway. There are costs involved in doing this, and that was the consideration. We would need to ensure that the Official Languages Act would be respected, although the briefing note would be provided to a minister in one language, it would need to be translated to ensure it could be published in both. There is also the question of ensuring that it is posted on-line in an accessible format, which we learned is fairly costly as we’ve been preparing to implement the provisions of this bill. That’s why when we looked at this originally, the proposal is for the briefing note titles and tracking numbers so that individuals can easily access the information they are interested in.
The Chair: Thank you, Ms. Naylor. If you want to leave the table. I will put the question.
Will all the senators who are in support of the amendment as moved by Senator Carignan, please raise your hands?
All those opposed?
It is a tie, so the amendment is defeated. Thank you.
I understand that there may have been a consequential amendment to this one. Are there any other amendments, senators, in relation to clause 37?
[Translation]
Senator McIntyre: I would like to table an amendment. Unless Senator Carignan wishes to table an amendment before me?
Senator Carignan: No. I’m not sure whether mine comes before yours.
The Chair: On my list, I already have Senator Ringuette’s amendments to clause 37. It’s amendment PR13.
[English]
This is the amendment to identify PR13.
[Translation]
We are still on clause 37, page 28, two pages later.
Senator Boisvenu: I think there are other amendments that we need to discuss before Senator Ringuette’s.
The Chair: That’s why I turned to you.
Senator Carignan: I don’t have any amendments, but Senator McIntyre does.
Senator McIntyre: Yes.
The Chair: Very well.
Senator McIntyre: I’m on page 26.
The Chair: Yes, of course. Can the text of the amendment be circulated? That is why I reached out on this side.
We are on page 26, still on clause 37.
Senator McIntyre: Clause 37 on page 26.
The Chair: The text of the amendment is being circulated now.
Senator McIntyre: It is proposed that Bill C-58 be amended in clause 37 on page 26, by adding the following after line 37:
74.1 Within 30 days after the end of the month in which a minister, any of his or her ministerial advisers or any member of his or her ministerial staff attends a meeting in the office of the minister and a person who is neither a public servant nor a public office holder — as those terms are defined in subsection 2(1) of the Conflict of Interest Act — also attends the meeting, the minister shall cause to be published in electronic form the following information:
(a) the names of all persons who attended the meeting;
(b) the date of the meeting; and
(c) the subject of the meeting.
The Chair: Can you explain the amendment?
Senator McIntyre: Yes, of course. The amendment is about part 2, which deals with the proactive publication of information, and more specifically briefing materials.
Mr. Chair, this amendment is intended to provide greater transparency and accountability to individuals, organizations and institutions that meet with interest groups in ministers’ offices. This amendment is directly related to the question I asked Minister Lametti on February 27, which had to do with meetings between staffers and lobbyists.
My question was as follows:
Minister, as you know, the lobbyist registry does not specifically indicate which lobbyist met with an office-holder. Would you support an amendment to make any meeting between a lobbyist and an office-holder part of proactive statements?
The Minister replied as follows:
Again, as I said at the outset of my remarks, the justice part of the bill is that which pertains to the judiciary, independence of judges, et cetera. I can channel your question to my colleague, who is responsible for that part of the bill.
Subsequently, I have received no meaningful response from Minister Lametti. You have to understand that he had just been sworn in. That being said, I think it is a tool that will allow Canadians to have access to quick information and a better understanding of the workings of the world of lobbying, which is a rather unfamiliar world. It is a matter of ensuring that there is consistency, determining whether there have been any loopholes in the registry of lobbyists, and filling in the gaps, if any. That’s basically about it.
[English]
Senator McCoy: To address the question — not having the Conflict of Interest Act in front of me — a person who is neither a public servant nor a public officeholder could include a staffer’s mother-in-law, I presume. I presume the definitions that you are talking about are defining the words “public servant” and “public officeholder.” Anyone else in the universe who visits in the minister’s office, with a staff person, or the minister, him or herself, would fit that definition. I think it might be a little broad and a bit intrusive. What about watching the results of an election on TV in the minister’s office on election night, which we all do and have good fun doing.
Senator Batters: Do we?
Senator McCoy: Yes, we do. I’m sure we do. Come on, fess up.
Senator Batters: I may not this year.
Senator McCoy: I am teasing a bit in that respect.
Senator McIntyre: The wording of “meeting” may be questionable. Perhaps that could be changed. The idea, I think, is to deal with lobbyists. Lobbyists are all over the place, provincially and federally. They seem to operate in secret all the time. It is important and crucial, for the Canadian public, to find out who these people are and what they are looking for. We could cite a lot of examples. We know what transpired in the SNC-Lavalin situation.
[Translation]
One example that I think is quite troubling is the testimony of the former Clerk of the Privy Council, Michael Wernick. We learned from his testimony that he had received a phone call from Kevin Lynch. As you know, Mr. Lynch is a former Clerk of the Privy Council. He is currently the Chair of the Board of Directors of SNC-Lavalin. We know that his name was never registered in the registry of lobbyists. We also know that, if Mr. Wernick had not disclosed this information, we would never have known. In fact, Duff Conacher, co-founder of Democracy Watch and adjunct professor at the University of Ottawa, will file a complaint with the Office of the Commissioner of Lobbying of Canada regarding Kevin Lynch. That’s a loophole in the registry of lobbyists. I could give you other examples.
Senator Ringuette: Exactly, in the words of my honourable friend from New Brunswick, we are talking about the registry of lobbyists, which already contains all that information. I believe Senator McIntyre’s amendment is already included in the Lobbyists Registration Act.
Senator McIntyre: The names are not disclosed.
Senator Ringuette: The registry of lobbyists discloses the names.
Senator McIntyre: No. When lobbyists meet with federal public office holders, I understand that the names of those companies’ representatives are not disclosed, and we do not know who meets which MPs or parliamentarians. That is where the problem lies.
Senator Ringuette: If the problem is with the registration of lobbyists, changes must be made to the Lobbyists Registration Act.
Senator McIntyre: I have trouble understanding your argument. This is Bill C-58, An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts. I think that’s pretty clear.
[English]
Senator Batters: First of all, I think what is happening on this particular one, the lobbyist registry, as it exists right now, only sets out the name of, for example, on SNC-Lavalin, Neil Bruce, who may not have been the particular lobbyist who was in those particular meetings, but that’s as specific as it gets. It just lists the person who is registered by that particular company. This is an attempt to try to get who was actually at the meeting. It is an appropriate part because it is dealing with that part of information, and this section of the act deals with that.
As well, in response to Senator Ringuette’s issue that the lobbyist registry would cover these types of things, what we heard during the Department of Justice testimony on this was the call that Mr. Wernick received from Mr. Lynch actually wasn’t on the lobbyist registry. So we’ve seen a clear example there that it doesn’t always capture that. That’s what I wanted to say. Thank you.
The Chair: Thank you. I would suggest, honourable senators, that we’ll keep the amendments on the table. Last night it was helpful, so I would invite honourable senators to keep that in mind, and, of course, we will continue our consideration of this amendment when we’re going to meet again next time.
[Translation]
Senator Ringuette: Will the committee’s steering committee meet in the next few days?
The Chair: It meets as needed, according to current practice. We are constantly consulting each other.
Senator Ringuette: I would like to discuss the possibility of sitting outside Senate hours to continue the clause-by-clause consideration of this bill.
The Chair: We will have the opportunity to consult with the committee members on the agenda. Last week, there was a consultation and we asked permission to sit one hour earlier on Wednesday afternoon, which the Senate granted. I will certainly consult with the members of the committee on this matter. Thank you for raising the issue.
(The committee adjourned.)