ETHI Committee Report

DISSENTING REPORT ON THE STANDING COMMITTEE ON ACCESS TO INFORMATION, PRIVACY AND ETHICS’ STUDY OF COURT ACTIONS BETWEEN THE INFORMATION COMMISSIONER AND THE CANADIAN BROADCASTING CORPORATION (CBC)

The issue of the compliance of various ministries and Crown Corporations with the federal Access to Information Act is certainly within the purview of the Standing Committee on Access to Information, Privacy and Ethics (ETHI). However, in the case of the Conservative-led study into the Canadian Broadcasting Corporation’s federal Court hearing on compliance under Section 68.1 of the Act, it is clear the work of our Committee was compromised.

The Conservative majority on the Committee was seen to interfere in issues before the Federal Court of Appeal, thereby breaching longstanding Parliamentary-legal conventions. Further, the Conservative majority on the Committee used the hearings to suggest changes to Article 68.1 of the Access to Information Act, the enabling clause in question in the court case.

It is disturbing that this proposed revision of Article 68.1 has not included due consideration of the language of the Broadcasting Act, which makes clear the “freedom of expression [and] the journalistic, creative [and] programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers.”^[1]  Thus the majority report risks even further muddying the waters of this debate.

Further, we are deeply concerned by the dubious procedures launched by the Committee as part of this study, including the Government’s passage of a motion to requisition the un-redacted documents at the heart of the court case with a view to their inspection by ETHI Members. This motion overstepped the proper function of a Committee of the House of Commons.

Our concern for this procedure has been reinforced by a legal opinion from Mr. R. R. Walsh, then-Parliamentary Law Clerk and Legal Counsel, and serves to underscore the political nature of the study which was undertaken in parallel to an independent court’s treatment of the issue. While we recognize that Committees may compel production of whatever documents and witnesses a Committee deems necessary, it is out of respect for the independence of the judicial branch that Parliament observes the sub judice convention:

It is accepted practice that, in the interests of justice and fair play, certain restrictions should be placed on the freedom of Members of Parliament to make reference in the course of debate to matters awaiting judicial decisions, and that such matters should not be the subject of motions or questions in the House.^[2]

Mr. Walsh, for his part, supported this point of view:

A House Committee should not, in my view, take on the role of a court - or even appear to take on the role of a court – by addressing whether particular actions taken by a party are permissible under the Act. To do so is to encroach upon - or to appear to encroach upon - the constitutional function of the courts.

Such an encroachment would offend the separation of powers between the judicial and legislative functions and possibly call into question the validity of ETHI's proceedings.

Mr. Walsh cited a further precedent in Mr. Justice Binnie’s 2005 Vaid ruling:

It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament, for its part, refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament.^[3]

as well as in Canada (Minister of citizenship and Immigration) v. Tobiass (1997), where the Court commented that the sub judice convention is essential to respect the courts’ role in administering the law.

Moreover, the matter of the separation of powers between the courts and Parliament was considered by the Chair of the Standing Committee on Justice and Human Rights on March 11, 2008, who ruled a similar motion out of order in light of the sub judice convention. A June 7, 2005 ruling by Speaker Milliken regarding a matter before the Ethics Commissioner substantiates this point of view. We are concerned that this Committee has attempted to directly interfere in a matter which was, at the time, before the Federal Court of Appeal and that the Committee risked overstepping the limits set by the Constitution and constitutional convention.

Mr. Walsh warned Parliamentarians of hazards that may lead a breach of the separation of powers. The Canadian Bar Association has also expressed its opinion, stating that “Members of Parliament must respect this important legal principle. The Committee would be well advised to await the outcome of the judicial proceedings before continuing its deliberations.”

We agree with the Canadian Bar Association, as well as the conclusion of Mr. Walsh, that “respect for the Constitutional framework of our Parliamentary system of government is part of the rule of law which is the over-riding legal principle that makes a democratic system of Government such as ours workable and credible.”

Mr. Walsh further noted in his opinion that had the Committee viewed the un-redacted documents (provided to them by the CBC in a sealed envelope), and should the CBC documents requisitioned by the committee ever be made public, “ETHI (or some members of ETHI) might be accused of causing this loss of confidentiality and of causing the legal process under the Act to be rendered pointless.”

Had the Federal Court of Appeal delayed its judgment for several weeks, ETHI risked flouting the sub judice convention by viewing the documents so ordered by the Committee for review.

Throughout this study, the Opposition has been very concerned with the manner in which the Government sought to disregard Mr. Walsh’s legal opinion regarding this study. If anything, Parliament should consider giving greater strength to the sub judice convention in order to prevent such an occurrence from arising in the future.

Through Mr. Del Mastro’s motion, the Government demanded that the Canadian Broadcasting Corporation submit un-redacted documents to the Committee that were at the time the subject of a dispute before the Federal Court of Appeal. Many legal opinions and precedents denounce this attempt to supplant the independence of the judicial branch.

Our political system is based on a separation of the legislative and judicial powers. The work of Committees of the House should not circumvent the judicial process in order to put a parallel process in place. Had the Federal Court of Appeal not rendered its decision when it had, this situation risked the creation of a dangerous precedent.

The CBC has made it clear that they are “satisfied” with the ruling and did not appeal the decision^[4]. An important aspect of the Federal Court of Appeal’s ruling was its support for the CBC’s right not to disclose journalistic sources for review to the Information Commissioner:

No such conflict can arise between a refusal based on what is best described as the “journalist-source privilege” (Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592) and the exception provided for in section 68.1. The identity of journalistic sources cannot clash with the exception relating to general administration, regardless of the scope attributed to this exception. In these circumstances, the only conclusion possible if one gives effect to the Federal Court judge’s reasoning is that the exclusion for journalistic sources, like the exclusions provided in sections 69 and 69.1, is absolute. It follows that in the event that a request seeking the disclosure of journalistic sources was made, a record – or the part thereof – revealing this type of information would be exempt from the Commissioner’s power of examination.^[5]

At present, the CBC has provided the Information Commissioner with the documents in question, and their status as exempted documents pursuant to Article 68.1 is currently under review. The Committee should not attempt to interfere in the work of an independent Officer of Parliament. We trust that the Information Commissioner’s decision will be the right one, and that it will have been made at arm’s length from ETHI.