ETHI Committee Meeting

    I call this meeting to order.

    Welcome to meeting number 113 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

     Pursuant to Standing Order 81(4), the committee is resuming consideration of the main estimates 2024-25: vote 1 under the Office of the Commissioner of Lobbying; vote 1 under the Office of the Conflict of Interest and Ethics Commissioner; vote 1 under the Office of the Senate Ethics Officer; votes 1 and 5 under Offices of the Information and Privacy Commissioners of Canada, referred to the committee on Thursday, February 29, 2024.

    Today’s meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members may attend in person and remotely using the Zoom application.

    I want to remind all members not to put the earpieces near the microphones, because it causes feedback.

    Today is the four-year anniversary of the Nova Scotia shooting. Before I begin, in honour of the victims and the people of Nova Scotia, I'd like to ask the committee if we can start with a moment of silence.

    [A moment of silence observed]

    I know that this is going to be another difficult day for the people of Nova Scotia. Our thoughts are with them today.

    Now I'd like to welcome our witness from the Office of the Information Commissioner. It's always a pleasure to have Caroline Maynard here, who is the commissioner.

    Ms. Maynard, welcome to committee.

    You have up to five minutes to address the members.

    You can start now, please. Thank you.

    Good morning.

    Thank you for inviting me to answer your questions on the Main Estimates for the Office of the Information Commissioner of Canada.

    Since taking office as Information Commissioner, I’ve always welcomed the opportunities made available to me to come and speak to you about the office’s activities and the state of access to information as a whole.

    For the fiscal year 2023-24, I am pleased to report that my office successfully resolved more complaints than it registered. This helped us make real progress against our backlog of complaints.

    Earlier this year, I requested additional temporary funding through the Minister of Justice in order to eliminate my backlog completely. Unfortunately, this request was not granted.

    Furthermore, I now find myself in a particularly difficult situation. As we begin a new financial year, I’m facing a structural deficit.

    To provide some context, the office received permanent additional funding for 27 investigators in December 2020. Because of the way the Treasury Board Secretariat calculated funding last year for new collective agreements, I did not receive funds to cover salary increases for 27 investigators.

    This is a 2% to 3% budget cut, which represents a cut of about $375,000 per year.

    For a small organization like mine, this is a significant strain. Every employee plays a vital role, and losing even a few can deeply impact my office's ability to fulfill my mandate. This is one more reason that I will continue to advocate for an independent funding model for my office, as recommended by this committee.

    Following last week's budget announcement, I am also concerned that the units responsible for access to information across the federal government could find themselves short of staff due to attrition, if departing employees are not replaced.

    Last September, in op-eds published in The Globe and Mail and Le Devoir, I cautioned that leaders must keep in mind that access to information is not a service but a quasi-constitutional right and a legal obligation, and it must be treated as such.

    In other words, access units must be afforded the resources that enable them to fulfill what is, I repeat, a legal obligation.

    Over the last year, I saw far too many cases where institutions ignored their access to information obligations. In fact, I am now in a situation that wasn’t supposed to happen. At least, that’s what I was told during the 2019 legislative reform.

     Before order-making powers were added to the Access to Information Act, I had suggested changes to ensure compliance. I was told that these amendments were unnecessary, as my orders would be legally binding. Institutions had to comply with the orders or challenge them in court. I quickly realized that this was wishful thinking.

    Indeed, rather than choosing between complying with my orders or challenging them in court, some institutions are choosing to do neither. By ignoring my orders, these institutions are, in effect, breaking the law.

    In real terms, this means that Canadians must wait longer before receiving the information they requested and are entitled to.

    Upholding the act is at the heart of my mandate. That is why I was forced to launch my own legal proceedings against institutions that chose to ignore my orders.

    So, to date, I’ve initiated four mandamus procedures before the Federal Court in order to ensure that my orders are upheld and a response is finally sent to the applicant.

    This expends my resources and those of the institutions who are deploying their own legal services to deal with these cases.

    How much is this intransigence costing institutions? I can only guess.

    This is not supposed to be necessary, and I am sure that Canadians would agree that it is not something we can afford in the current economic context.

    It turns out that a culture of secrecy does not only impact our democracy; it comes at a considerable financial cost.

    Thank you.

    We thank you for your statement, Ms. Maynard.

    We welcome Mr. Martel and Mr. Fortin, who are our guests today.

    We will now start the first round of questions.

    Mr. Barrett, please go ahead.

    You have the floor for six minutes.

    Thank you, Mr. Chair.

    Good morning, Commissioner.

    You're currently investigating ArriveCAN. Is that correct?

    Yes.

    We've heard that Minh Doan, who is the chief information officer of Canada under this Liberal government, destroyed or attempted to destroy over 1,700 emails relating to ArriveCAN. Is that what you are specifically investigating?

    I cannot talk about the complaints or the investigation I'm doing, but it is part of the overall investigation, given that I started my own investigation.

    What was the trigger for your investigation?

    It was the number of complaints we received, the allegations we saw and the testimonies that were sufficiently serious that I decided to initiate my own investigation into the affairs of CBSA and ArriveCAN.

    Are you able to tell us if you've interviewed Minh Doan?

    No.

    Is that no, you're not able to tell us?

    No.

    He has not co-operated with parliamentary committees investigating his role in arrive scam. Are you able to compel testimony from Mr. Doan or others whom you wish to interview?

    Yes, the act allows me to.

    Which act is that?

    It's the Access to Information Act.

    Are you able to share with us if you've been able to obtain copies of the up to 1,700 emails that are said to have been deleted?

    I cannot confirm that.

    Are you able to tell us if you have the power to order the production of those emails or any other documents that are relevant to your investigation?

    Yes. Under the act, I have the power to subpoena documents and subpoena witnesses.

    What are the penalties for obstructing an investigation if someone refuses to provide documents or refuses to co-operate?

    There's no penalty.

    The only thing I can do under the act, if I find that somebody is intentionally refusing to co-operate or refusing to provide documents, and if it looks like it's an intent to not provide access to Canadians to some documents, I can refer that to the Attorney General. As soon as it becomes more in the grey zone of criminal intent, I cannot investigate those allegations.

    Are you able to say what the remedy is that the Attorney General would be able to offer?

    No.

    Have you done that in the past?

     I've done it six times.

    Do you know what the outcomes of those six referrals were?

    I have never been aware of an investigation.

    We've seen key players in the $60-million arrive scam lie to parliamentary committees. We know that the House found one witness, one individual, to be in contempt for prevaricating and refusing to answer questions.

    Are the witnesses that you interview sworn in? Do they take an oath before you take testimony from them?

    We can ask them to. They have to be sworn in, in an affidavit.

    Anyone who swears an oath can be charged with perjury, which carries a penalty of up to 14 years in jail. It's an indictable offence. Is testimony to you protected by the same type of privilege that people who testify at parliamentary committees enjoy?

    I don't believe so.

    The cases that you refer to the Attorney General, to the Crown, could be referred to a prosecutor for charges of perjury, as an example. That potential exists.

    That would be in the purview of the Attorney General's decision, yes.

    For the half-dozen, could you tell us over what period of time you've made referrals?

    Over the last four years, the Office of the Information Commissioner has referred six cases.

    Are the details or the specific cases that you referred a matter of public record?

    No.

    Is it confidential?

    You can access it through the Access to Information Act.

    Would one need to file an ATIP with your office to get that?

    I believe that if you do an informal request, we probably can provide you some information on those cases.

    Ms. Maynard, would you be willing to provide that information to the committee?

    I would.

    Thank you very much.

    Who else would be subject to your investigation? We're talking about with respect to ArriveCAN. Are you able to share with us what your scope would be, or are those details that you're unable to share?

    I cannot. Yes.

    Have you so far seen co-operation from the entities or individuals you've contacted in this investigation?

    I cannot confirm.

    Are you able to share with us the anticipated or target completion for your work? Is that something that you forecast?

    I'd like to finish before the end of this year.

    Is that the end of the calendar year?

    That's 2024, yes.

    That would mean that you would be able to report on it by that time.

    Yes.

    Okay.

    Commissioner, thanks very much for your responses to my questions. I appreciate it.

    You're welcome.

    Thank you, Mr. Barrett.

    Ms. Khalid, you have six minutes. Go ahead, please.

    Thank you very much, Chair.

    Thank you, Ms. Maynard, for being here today. It's much appreciated, all of your work and your tenure.

    I appreciated your comments about making sure that your office functions effectively, and a lot of that has to do with funding as well. I note that in December 2023 the opposition voted against funding for the Office of the Information and Privacy Commissioner as a whole and, as you've said, without—

     We voted non-confidence.

     Please don't interrupt me. I don't interrupt you when you speak.

     I apologize to Ms. Khalid and the chair.

    I don't want any disruptions here. Keep the comments down.

    I accept your apology, Mr. Kurek.

    Do you, Ms. Khalid?

    Absolutely.

    We are going to continue. I stopped your time. In fact, I'm going to give you the 25 seconds back.

     You have six minutes. Go ahead.

    Thank you very much, Mr. Chair.

    You said, “Without additional funding, I will no longer be able to carry out my mandate responsibly and ensure full respect of Canadians' rights of access to information.” Those are the words of the Information Commissioner when Harper was in power and Pierre Poilievre was the minister responsible for safeguarding our democracy.

    Do you worry that receiving ample resources in the years forward, or not receiving them, is going to hurt how your office effectively functions?

     Having sufficient funding is always at the heart of my mandate, because I don't know how many complaints we're going to receive and I don't know how many investigations we'll have to do.

    This is why I was asking for an independent funding mechanism, so that if it goes down, we can reduce the funding; if it goes up, we can ask for it through a mechanism that's faster than the current mechanism we have, so that it's providing us with sufficient funding.

    I appreciate that.

    As you're entering the final year of your mandate, what challenges do you see for your office going forward?

    You referred to the former commissioner, and what's interesting is that if you look at the testimony she gave in 2015-16, there aren't many differences between what we said back then and what we are saying now.

    The act needs to be modernized. The government has to change the way it deals with access to information, and it has to be more proactive. It has to provide information, because the Access to Information Act is now not responding to the demand, so we have to do something.

    We have to invest in our resources, and we have to manage the information better. Between the time I started in 2018 and now, it hasn't improved. I don't think it's going to improve in the future either if we don't change it.

    I appreciate that.

    How do new technologies play into the role of the office when we're talking specifically about artificial intelligence, digital technologies and privacy concerns? Do those play a role?

    New technology for sure would help units respond to access requests more quickly, by removing duplication and going through documents faster. There are some institutions that are already using robots. They call them “bots”.

    IRCC is using some of them. That's one example. IRCC has been trying to upgrade the portal through which it provides information. Without that, access requests will keep going up. Certainly we need to find tools to provide that information in a proactive way.

    Do you collaborate with other departments, such as Shared Services, to develop those technologies, or do you do that separately, on your own, in your office?

    That's within the authority of the Treasury Board Secretariat, because they are responsible for administering the act. I often provide some examples of solutions that could be explored.

    Does your office have a plan for how to deal with these evolving technologies and for how we can provide services for access to information?

    No, we don't.

    Are there thoughts about creating a plan?

    Doing that is not within my mandate.

    Through investigations, complaints and dealings with institutions, sometimes we come up with best practices. During meetings with other institutions, I often refer them to these institutions that have good practices, but that is really within the purview of the President of Treasury Board Secretariat.

    That's fair.

    You mentioned complaints, and you indicated that on certain files you have received a lot of them. How do you differentiate between frivolous complaints and what you would consider to be legitimate? Does doing that take up a lot of your time and resources?

    It doesn't, but I know it does impact institutions that have to deal with requests that are made in bad faith, that are vexatious or frivolous. Under the act now, they have the option of asking me to allow them to not respond to these requests. If I give them such authority, such approval, they can not respond to these, but they still have to prove that the requests are frivolous or vexatious, and that's not always easy to do.

    What does that process look like in your office?

    It's a very simple process whereby the institutions send us the wording of the request—because it's the request that has to be vexatious or made in bad faith—and then they have to give us the evidence or the arguments for why they believe it's a vexatious request. The requester has a chance to respond to the allegations and, based on those two submissions, we decide, based on the case law, whether or not the request itself is vexatious.

    Are you able to share an example of such a vexatious request?

    We have a few summaries of those on our website. I can send them to you.

     Can you share something with us today?

    We just approved one request that led to 2,000,000 pages. Without the co-operation of the requester to reduce it, it would have been such a huge imposition on the operation of the institution that we'd have agreed that the request was not reasonable.

    Thank you.

    Thank you, Ms. Khalid.

     Thank you, Ms. Maynard.

    Mr. Fortin, you have the floor for six minutes.

    Thank you, Mr. Chair.

    Good morning, Ms. Maynard. Thank you for being with us.

    Good morning.

    This morning, I’m replacing my colleague René Villemure, who couldn’t be here. After a conversation with him, I have a few questions for you.

    I understand your role. As the Information Commissioner, I imagine that you’ve had to work on redacting certain documents. I would like your opinion on that. For someone who is a bit of an outsider on this committee, it’s always surprising to see the quantity of words, of pages, when it’s not entire chapters, often redacted from government documents. I would like to hear what you have to say on this issue. In your opinion, is there currently too much redaction, or not enough? Should it be done differently?

    What is your point of view on the redaction problem? It often deprives the general public and even parliamentarians of access to information that could be of significant interest.

    Generally speaking, I agree with you that many institutions react first by redacting documents instead of trying to give the most information possible through access to information. The Access to Information Act includes exceptions and they must be applied correctly. We often note that these exemptions are discretionary in nature. We note that institutions tend to use their discretionary power not to grant more information, but instead to block it quickly, rather than grant it.

    Within the framework of our investigations, we try to work with institutions so that information is made accessible or not redacted any further. In certain cases, redaction is reasonable; in others, we realize that, if more information were granted, people would better understand decisions made. In contrast, hiding information often creates confusion and raises questions.

    Certainly, the more information is made available, the more confidence there will be.

    Can you explain where this rather widespread reflex among departments comes from? Why redact information more than necessary? What causes this? Is it distrust? How do you explain it?

    It’s very difficult to say. Every institution is different and applies different sections, but I think it’s often provoked by the fear of giving too much information, information that won’t be well understood. This culture currently exists within government, and we have to change it. This change really must come from the leadership. Ministers, deputy ministers and managers should encourage disclosure, not discourage it, but it’s a culture that is very hard to change.

    If I understand correctly, it’s rather widespread through different departments.

    Can you tell us if a directive coming from higher up asked all departments to say as little as possible, or if it’s the degree of distrust that varies from one department to another?

    This culture has always existed. When the legislation passed, its goal was to grant access to information by limiting exceptions. However, I think the way people applied that legislation since then led to the opposite effect. We see exceptions being the norm instead of granting access to information. It’s generalized. It’s not done on an individual level.

    Does this reflex have consequences on a financial level, for example, for the Office of the Information Commissioner? Does the fact that many documents are redacted lead to additional costs or not?

    It often has the effect of causing people who receive redacted documents to wonder what is being hidden from them. They have the right to file a complaint. That’s often what leads to more complaints for my office every year.

    There are more requests, more information is refused, and so the applicants, the complainants, turn to us to get access to those documents.

    If I raise the subject of the report about the researchers at the National Microbiology Laboratory in Winnipeg, do you know what it’s about?

    I see you smiling; obviously, the answer is yes. If that’s not the case, tell me.

    If I understand correctly, a total of around 600 pages in the report were redacted. If not in their entirety, then in very large part. After the parliamentarians who had access to the document finished reading it and commenting on it, the report was sent to the Supreme Court, where three justices reviewed it.

    At the end of the day, of the original 600 redacted pages, I'm told that the equivalent of about 14 pages was left. How do you explain this?

    I can’t speak to that specific case.

    That said, you’re flagging something that is problematic. Now that we know the result and the time it took to disclose the document, people are no longer convinced that documents are revised appropriately. That is why many complainants tell us they doubt the exceptions and exclusions are applied appropriately.

    In fact, at the end of an investigation, they often receive more information than at the outset, which should not be the case.

    I see.

    Thank you, Ms. Maynard.

    Thank you, Ms. Maynard and Mr. Fortin.

     Mr. Green, you have six minutes. Go ahead, please.

    Thank you very much, Mr. Chair.

    Welcome back to committee, Ms. Maynard. I always appreciate the candour, professionalism and rigour with which you approach your work as commissioner.

    You'll note that this committee has long wrestled with access to information, the delays and the structural issues that are underscored by what you described as a structural deficit baked into your operations.

    In your opening comments, you referred to your work as “a quasi-constitutional right” that must be upheld. Also, you referenced institutions that were negligent in responding to your requests for access to information. I believe you said that there are four actions currently under way. Which institutions are those?

    There were four applications of mandamus produced. The first one was against the Trans Mountain Corporation, TMC. That application was settled. Then, I had to apply for a mandamus against National Defence three times. One has also been found to be moot, because the request was responded to, but we still have two active applications with the Department of National Defence.

    These are active against the Department of National Defence.

    Yes.

    There are three actions. One of them is moot, because you actually had to take them to court using your own resources on a budget that already has a structural deficit baked in. There is no punishment for not following your orders.

    In your estimation, does it not incentivize departments to not comply, if there are no real repercussions?

    That's the fear that we have in my office right now. We hope that it's not going to become a norm.

     With regard to the Department of National Defence, given the strong mandate that you have and given all the agencies and institutions that are prevalent, does the fact that this one has required this three times not speak to a culture within the Department of National Defence?

    Whether it's the culture or a lack of resources, the priority at National Defence definitely has not been to provide access to the appropriate resources to respond to these requests.

     I put to you that, in my short time of four or five years here, one frustration I have—coming against the idea of open government, of being open by default and of having parliamentary privileges—is that in practice we're often left with very little information to make informed decisions as decision-makers in the House of Commons. It's something that we wrestle with. I don't think it's a partisan issue, quite frankly. I think there are members of all parties who agree. In that regard, it's part of our mandate and duty to deal with these things.

     We had a situation yesterday, which was a once-in-a-century type of situation, because somebody refused to follow the very basic premises of our abilities to send for documents, order for evidence and make witnesses appear. My concern—and we've seen this with other studies that we've had right here at this committee—is that, if people know there's no consequence, then forget about “open by default”: There's going to be, I think, a culture of “cover-up by default”, “secrecy by default”, “obstruction by default”, “negligence by default”.

    For that reason, Mr. Chair, I wonder if it might be wise for us to seek unanimous consent for a motion that would draft a letter from this committee to the Department of National Defence, urging them—we can't direct them, as that comes from the House—and recommending to them that they comply in good faith with our Information Commissioner. The fact that we have a cash-strapped commission having to take legal proceedings and that, in the House of Commons in the last session, Parliament had to have the Speaker of the House go after the government to get information, is a problem. In this situation—I think in a non-partisan way—by seeking unanimous consent, the letter comes from you to the Department of National Defence, asking them to comply with the demands from the commissioner, in accordance with the act and with her mandate.

    It's not something I want to get into a filibuster over, but I do think the testimony we heard is compelling. One department has a pattern here. I think that should be a request. It's a very reasonable, rational request. It's not a demand.

    I'm going to stop you there and accept that as a motion.

    Thank you.

    I think it's a reasonable motion as well. Of course, now that the motion has been moved, we have to seek debate on that motion. I appreciate the fact that you don't want a long debate on it.

    I won't speak to it.

    I open the floor.

    Madam Maynard, can you just hang on for a second?

    I see Ms. Khalid on what Mr. Green has proposed, and then Mr. Barrett. Go ahead.

    Thanks, Chair.

    I'm just seeking clarification. Is there something similar going on at the national defence committee?

    I wouldn't know that, if any—

    I have no opposition to this.

    Okay. Thank you.

    Go ahead, Mr. Barrett.

    This makes great sense. I appreciate the motion coming forward. We'll support it.

    Mr. Green is in the process of reading minds down the table.

    We should make it time-bound. I'm not sure if similar requests have been made. I don't personally have a suggestion but that they should comply sometime in the future. I'm sure they made overtures that, at some time in this century, they will, but that's obviously not acceptable, so make it time-bound. It certainly has our support.

    I seek some guidance from Ms. Maynard on this. In your opinion, what would be a reasonable timeline if the committee were to agree to what Mr. Green has proposed?

    What you need to understand is that I already ordered National Defence to respond to a request and they said they would comply with the order. Under the act, you either comply or you go to court. In this case, they said they would comply but they didn't. They missed the date, so that's why I'm in court, to force them to respect an order that has already been issued. The timeline.... It's already too late.

    It's passed.

    Mr. Green.

    I just reflect that, in terms of our order of operations, my fear is we'll have the same treatment unless we put in a date. I think, if it's two weeks for a response from the time of the passing of the motion, that would at least give them the opportunity to respond to this committee with what their intention is.

    Can I suggest, then, that it be within a month?

    Sure.

    That's a month from the date of the letter being written. If that's acceptable to everyone, I think that's a reasonable timeline.

    I will advise the committee that there is nothing binding to this, so that we're all aware of that, but based on what Mr. Green is proposing, I think it's a reasonable request. It may or may not help Ms. Maynard, but what will help is the fact that the message has been heard by this committee.

    I am going to seek unanimous consent on what Mr. Green proposes. I'm not seeing any dissension.

    (Motion agreed to)

    The Chair: We're going to continue on.

    Unfortunately, that's the end of your time, Mr. Green. Thank you.

    We're going to go to Mr. Kurek for a five-minute round.

    Go ahead, Mr. Kurek.

    Thank you very much, and thank you, Commissioner, both for coming again to the committee and for your work. As a highlight, you talked a bit about the quasi-constitutional right to access. Maybe that's something that would be articulated in a perfect world as a constitutional right. I think that open and transparent government should certainly be the default, and it is incredibly frustrating that we have this culture of secrecy that exists.

    In a follow-up to the conversation, you referenced—and I apologize if I missed it—there were four of the six you referenced in your opening remarks. One was with TMC. Four were with the Department of National Defence. Did you mention what the other one was?

    It was six with the referral of the investigation to the Attorney General, but four applications of mandamus: three against DND and one against TMC.

    Okay, I appreciate that being clarified; there are those four current proceedings before the courts.

    Now I think that we find ourselves in an interesting circumstance. You've been given order-making power, and it would have at one point in time been seen to have been enough to name and shame. We've had similar conversations now with a series of ethics commissioners to the effect that a $500 fine for breaking the ethics rules was at one point seen to be.... The punishment of being exposed as having broken the ethics rules was enough.

    You were assured in the beginning not to worry about it—there's no penalty because it's not a big deal, because of course they'd want to.... I'm being a bit facetious here, but Madam Maynard, Commissioner, what would be an appropriate penalty to ensure that we don't have this culture of secrecy ultimately perpetrated upon Canadians who are denied access to their information?

    It's really hard to tell what would make institutions understand their obligations and the fact that it's important that they respect the law, that the requests must be responded to within a certain time, and that the orders of the commissioner must be complied with.

    Who's responsible, ultimately? Is it the unit that's responding, the minister, the people between? It would be a difficult task to determine where it broke, but a penalty.... We don't have penalties under the act. The Commissioner of Official Languages was just provided with some penalties with his new act, so it's going to be interesting to see if that has an impact, but I would love to have performance objectives whereby maybe some people would be required to respect the obligations under the act.

    When criminality is involved, you refer those cases to the Attorney General. It seems to me that it would be possible, but that's a bit like a black hole. You don't see the result of that, and certainly Canadians don't see the result of that. Does there need to be transparency in that process, so that if you see criminality, if there's a need for that referral, there's a public reporting mechanism?

    Certainly, I would like to know, in the six cases that you've referred to, what the deal is with those. Are cabinet ministers implicated? Was there criminality within departments? Those are open questions that I think should be fair ones to ask, yet we have this black hole currently that exists, administratively, such that the good work that your office does comes against the wall of prosecutions. Then, all of a sudden, it is a Liberal-appointed Attorney General who is responsible for the decision-making process in terms of what to do with possible criminality that could have significant political consequences.

    Do you see a concern with that process?

     Under my submission for amendments to the act, I suggested that it be changed to a referral to the appropriate authorities. That would open my authority to refer to the RCMP or to another police authority. Right now it's very specific that it has to be referred to the Attorney General.

    There could be, right now, alleged criminality that is not being investigated because it would be easier for the Attorney General to simply make it go away.

    It's their decision. It's within their authority to decide what they investigate or not.

    Wow. Thank you.

    Thank you, Commissioner and Mr. Kurek.

    We're going to go to Mr. Fisher for five minutes.

    Go ahead.

    Thank you very much, Mr. Chair, and I want to thank you for that moment of silence at the start of our meeting. As a Nova Scotian, I certainly very much appreciate it.

    Commissioner, welcome. Thank you very much for coming today.

    In the main estimates, your office is asking for just over $15.3 million, which is an increase of just over $1.1 million over last year. Can you tell me what that $1.1 million looks like, what that represents, and how those funds will be used?

    The last time we received an increase was in 2020, and it was with respect to amendments to the act. Anything we get, we invest in our investigators. The number of complaints we receive is increasing every year, so we put that money into more people, to investigate faster and to eliminate our inventory as quickly as possible.

    Notwithstanding the way you would like to see your office funded based on the number of complaints, is this budget increase going to be sufficient to enable your office to fulfill the mandate? Do you feel comfortable with that number?

    I haven't had an increase in the last three or four years. I requested $2 million per year for three years in the last budget request for temporary funding, and that was not provided.

    This is the first increase, then, in the last few years, this $1.1 million.

    I don't really know where the $1.1 million comes from, because the last time I received money, it was $3 million a year since 2020.

    Is it possible that it's the Privacy Commissioner you're referring to?

    No, it's the OIC. It's seeking $15.3 million, an increase of $1.3 over last year's main estimates.

    Now I think I understand what you're saying. It's the additional funds for collective agreements for all of our employees. I would say that 75% of our employees received an increase in the last four years, so that would be covering that.

    I think you may have touched on this with Mr. Kurek, but with regard to the Access to Information Act, you did say that there were some amendments made to it, but you said that you pledged to continue advocating for changes to the act and the system. I'm wondering what those changes might look like, and I think you touched on one with MP Kurek.

    Could you maybe talk in broad terms about what those changes might look like?

    First of all, the act, because it's 40 years old, needs to be modernized in terms of its purpose. Right now, I don't have access to cabinet confidence, so those documents are not reviewed by my office. That's something, I think, that's problematic, because the section to say that something is subject to cabinet confidence is being used more and more, and there is nobody independent from the government right now investigating those documents.

    I think that the act should also be applicable to ministers' offices and the Prime Minister's office as well, so that would broaden the application of the act. Those are some of the submissions and recommendations that I made to this committee during the review of the act.

    Thank you for that.

    In your departmental plan, you said that you're going to continue to do everything possible to continue the trend that you established of improving performance and being more efficient.

    Can you tell me some of the things you might have done to do that and if that's something we can use as a blueprint for other departments? We're always looking for ways to be more efficient.

     When I arrived as the new commissioner in 2018, the first thing I set in motion was to be more efficient so investigations could be done in a timely manner. We added tasks and timelines to all of those, and we follow them. We don't give extra unlimited time to institutions to respond to us anymore. We have so many files. We could leave them. We have other files to work on. However, when we open a complaint, it's assigned and we finish it. We don't put it back in a drawer.

    Those are the types of things we focus on. We invest all our money in investigations and in the training for that. We provide guidelines to our investigators, so there's consistency as well.

    Thank you very much.

    Thank you, Mr. Fisher. That's five minutes.

    Mr. Fortin, you have the floor for two and a half minutes.

    Thank you, Mr. Chair.

    As I have only two and a half minutes, I will try to be expeditious.

    Ms. Maynard, you told us about four mandamus applications that were filed in federal court. To your knowledge, were they under an exclusion order or publication ban?

    No, they are public.

    So that means you’re able to tell us who is involved.

    Did processing these applications incur any costs?

    Processing these applications required resources. We had to give these cases to our in-house counsel. Otherwise, they would have been investigative files. Our lawyers have to dedicate time to presenting an application to the Federal Court to force an organization to respect its obligations.

    Who are the four defendant organizations?

    As I said earlier, Trans Mountain Corporation was one of the first organizations to refuse to obey an order. The three other cases involve the Department of National Defence.

    After the mandamus application, what defences have been presented so far in all four cases?

    In all four cases, we are still preparing documents to present at a hearing. Affidavits have therefore been prepared, but there hasn’t really been any debate yet.

    The Department of National Defence therefore did not produce any written defence to say that they were refusing to cooperate for such or such a reason? Wasn’t there a process like that?

    No. There hasn’t been one yet.

    You mentioned questioning and affidavits. In the affidavits, did the Department of National Defence mention any aspects of its defence?

    I am unable to give you details.

    However, from what I understand, when the Minister of National Defence is unable to respond, even though he said he wanted to, it’s often due to a lack of resources.

    You said that is what you understood, but were you told or informed in writing that they needed more time and didn’t have the required resources to respond to the application?

    I would have to carefully check the affidavits for each case. They are all different.

    If you want, I can send you the reasons provided by the Minister of National Defence, which are in the documents he produced.

    If it’s possible, I would indeed be grateful to you if you could send the affidavits, the letters or the written processes that explain National Defence’s position, as well as those for the Trans Mountain Corporation.

    I see that my two and a half minutes are up.

    Thank you, Ms. Maynard.

    Mr. Fortin, I am sorry, but your time has indeed run out.

    Mr. Green, you have two and a half minutes. Go ahead, please.

    Thank you very much.

    Mr. Fortin quite adequately expanded on the process when you have to refer to court. If I recall, you mentioned there were six cases you referred to the Attorney General, yet we've explored only four of them that went forward publicly.

    Would you please share with the committee what the other two cases were that were referred to the Attorney General but not acted upon?

    It's two different things.

    The six cases the office referred to the Attorney General were with respect to investigations in which we felt there was reasonable evidence of an intent to obstruct the access requests.

    Which ones were those?

    I will have to send you a list, because some of them are from before my time. It's usually because we believe there's a possible criminal charge coming up.

     The four mandamuses are separate.

     For the purpose of this committee and for the purpose of the good welfare of open and transparent government, I would request that you submit that list of referrals to the Attorney General's office for the reflection of this committee in response to the work that you're doing.

    Mr. Chair, at this time, I'd like to just table a notice of motion. I won't be debating it, but I think it's in keeping with the trends of the lack of forthrightness and truthfulness at this committee. I'm not moving it but just tabling it today. The motion, which will be distributed, reads:

    I'm tabling that now. That will be submitted to everybody in both official languages for their consideration at future meetings.

    Mr. Chair, having people mislead this committee is something we should take very seriously.

    With that, I'll cede the rest of my time with Ms. Maynard.

    Thank you.

    Thank you, Mr. Green.

    The motion has been put on notice, and the clerk is in receipt of the motion. That will be distributed in both official languages. Thank you.

    We have two five-minute rounds left. We're going to go to Mr. Barrett, followed by Mr. Housefather, who will conclude.

    Go ahead, Mr. Barrett.

    I'd like to circle back to the point that you raised in my first round and in the round with Mr. Kurek, talking about ArriveCAN.

    You have an ongoing investigation. I appreciate that you can't get into the details of that, but we have allegations that a senior official, a chief information officer, Minh Doan, is alleged to have deleted 1,700 emails—maybe more, but we don't know—or destroyed documents in a case that is of great public interest. Obviously, this frustrated the work of the Auditor General of Canada, and certainly there are other potential investigations that are happening with the Royal Canadian Mounted Police. They've indicated that they are in fact investigating ArriveCAN.

    In an investigation, if you find that a government official has deleted or destroyed government documents, what is the consequence that is meted out for a violation under the act?

    There are two things. Administratively, if somebody could have destroyed or erased emails, I don't have any penalty. If we arrive at the conclusion that the documents don't exist anymore, we can make a finding and produce a report. However, if I find that there's reasonable evidence that it was done intentionally to prevent somebody from having access to these documents, my only authority is to refer it to the Attorney General for future investigation.

    Commissioner, I'm having a very hard time with this. We have a situation in which individuals you're investigating, like in the ArriveCAN scandal, as an example, can lie to you, can commit perjury, can be found to have intentionally destroyed documents to frustrate investigations, and the maximum penalty that you can apply is a referral to the Attorney General. Is that correct?

     That is my only authority in those situations, yes.

    Herein lies the problem, because, as has been pointed out, the Attorney General sits in the cabinet and has been appointed by Prime Minister Justin Trudeau. This situation is incredibly politically sensitive for the government.

     We have an independent officer of Parliament who goes to great lengths to get answers, to get access to information and to ensure that basic transparency laws are being adhered to, and the Attorney General, who, as I've said, is a Liberal cabinet minister, is the arbiter of whether or not it goes any farther.

     I just can't see how that ensures any kind of confidence in our public institutions or the efficacy of the work you're able to do. What's the solution to this?

    I think separating the investigation of criminal and administrative matters is the appropriate thing for an agent of Parliament, but as I submitted earlier, it may be better to have in the act that I can refer these types of cases directly to the authorities in charge of investigating those types of criminal charges.

    What's the precedent for that? Does that exist with other officers of Parliament?

    If you look at the federal act for judges in any court, if they find during a hearing or a process evidence of intent to commit a criminal offence, they can refer to any authority they want to.

    What about the lobbying commissioner? Does she have to refer cases to the Attorney General, or...?

    I don't know.

    She refers them to the Royal Canadian Mounted Police, so I find it incredibly troubling that we have a situation here.... I think Mr. Kurek rightly put it that we end up with them going into a black hole, and that's not how we restore confidence in our public institutions.

    Thanks very much.

    Thank you.

    Thank you, Mr. Barrett and Commissioner.

    Mr. Housefather, you have five minutes. Go ahead.

    Thank you very much.

    Thank you, Commissioner.

    I'm going to come back to Mr. Barrett's question. Has the act been amended since 2015 to change the provisions about how you would refer matters to the Attorney General?

    No.

    It wasn't this nefarious act by the current government to change the law so that you can refer matters only to the Attorney General. That existed while Mr. Harper was Prime Minister.

    It's been like this since 1983.

    That's since before many of us were even born.... Okay. Thank you very much.

    Coming back to delays, I wanted to ask you a question. You talked a bit about how you were clearing the backlog. I know that when you were first appointed, I saw a CBC article from April 2018 that said they had done an investigation at that time, and there were 267 complaints that were more than five years old. Do you know how many today are more than five years old?

    I don't have that, but I can provide it to you.

     I think we're now at less than 20 cases from prior to when I was appointed. My goal is really to reduce the backlog to two to three years max, which is still long, but we do have cases that are extremely complex. We're working on trying to have, yes, an inventory that's flowing instead of growing.

    Well, I congratulate you on that, because we certainly prefer flowing to growing.

    Can I ask this question? In the United States, as I understand it, you can go to the federal court, or whatever the American court is that would be applicable to an access to information claim, weeks after you file, but they don't have a position that's analogous to yours. Is that correct?

    Yes.

    Here, the way our law works, you would be able to go to court only after you had already ruled on a claim. Is that correct?

    Yes.

    That could lead to potential delays of years if the process isn't flowing faster, which then means that the material people are asking for is so out of date that it's almost irrelevant.

    Can I ask, what can we do to help you in your job of making this flow faster? That's other than just giving you more money, which would be the obvious answer to that, but I don't know that I have the authority to do that.

    Having more resources when complaints are increasing is definitely a solution. Having fewer complaints that are not necessary coming to my office would also be very helpful sometimes, when I do a systemic investigation.

     As you're going to see in May, I'm going to be submitting to you a report with respect to immigration files, with a possible solution there whereby the government can provide information otherwise than having people have to submit access requests. That's going to reduce the number of complaints that come to me and will give me more time to work on the real complaints I should be getting.

    That’s a good idea.

    I heard you say earlier that you can process applications informally without necessarily requiring a full investigation.

    When I was the mayor of Côte‑Saint‑Luc, we did the same thing. I never made people file these types of requests. We always maintained the principle that, if somebody asked us for the information and we were unable to provide it, we would say so.

    If government departments adopted such a practice, would that make your work a lot easier?

    Absolutely.

    I think the proactive disclosure currently in the act is very limiting. We encourage institutions to give out repeatedly requested information.

    They know which documents are requested and could provide them voluntarily without waiting for an official access request.

    Is there a government department using best practices that the rest of us could refer to?

    Every institution has difficulty meeting its obligations.

    When we publish information, it must be published in both official languages. One of the excuses I often hear is that it’s very expensive. At the same time, I think that if people did the work from the very beginning, knowing the information will be disclosed, we could cut costs and make sure the information is provided.

    Thank you, Ms. Maynard.

    I will cede the remaining time.

    Thank you very much, Commissioner.

    Thank you.

    Thank you, Mr. Housefather.

    That concludes the questioning today on the estimates.

    Commissioner, on behalf of the committee and Canadians, I want to thank you for appearing before the committee again. Like Mr. Green, I really appreciate your frankness. I know you're in a difficult situation right now. You have a lot of work to deal with, and perhaps there is a lot of work ahead. If there's anything we can do as a committee to help improve your work and the efficiency of your office and staff, always feel free to contact me, the chair. I can certainly bring that to the attention of the committee.

    Thank you again, Commissioner.

    We're going to continue.

    We have one order of business that I need to deal with. It involves the budget for the study we're doing. It is in the amount of $2,000. That includes headsets and some other expenses.

    I'm going to seek the unanimous consent of the committee to approve the budget.

    (Motion agreed to)

    The Chair: Seeing no other business, I am going to adjourn the meeting. I want to wish you all a very good....

    Go ahead.

    Are you going to talk about the letter?

    I was going to bring it up, but I'm still dealing with some stuff.

    Okay, I'll bring it up, but I don't want to get into a prolonged discussion.

    As you know, the committee dealt with a motion the other day to defer the report on the social media study. We received a letter from ISED, saying it would be 200 days. I thought Ms. Khalid brought up a couple of good points the other day. I want to seek clarification and guidance from the committee. I think we should write back to ISED. Rather than have this open-ended 200 days, I think we should ask for more specificity on when they can expect this to be done. I know how important this study is to the committee. I don't want it to sit there and not be dealt with. If we get that clarification from ISED....

    I talked to Ms. Khalid about it. I'm not sure how I can format this. We'll figure it out with the clerk and analysts. If it is the will of the committee, I would like to write a follow-up letter to ISED, asking for more clarity on the timelines. They said it was going to be 200 days. As we discussed the other day, we didn't even know whether that was based on when the security review was announced in September or on the date of the letter, April 19. That's what I'm looking to do. If I have the approval of the committee to do that, I'll draft it. I can send it out for you to see, for your benefit, before I send it to them. That way, you can provide comment on that.

    Go ahead, Ms. Khalid, on that.

    Thank you very much, Chair.

    First off, I appreciate your revisiting this. I know this study is quite important to members of the committee.

    Yes, I think we need to seek confirmation on the timeline.

    If I may, there are two other points we would hope to include in the letter.

    Go ahead.

    A lot of media reporting has indicated that the review was triggered by a business expansion. I'd like for us to confirm this was the case for the nature of the review.

    Also, section 2 of the Investment Canada Act states:

    I'm not sure how that relates to the complete substance of what we have been studying. I would like to seek a bit of clarity about the national security review. Is it to assess the data-harvesting and data-sharing practices of TikTok, or is it related to an impending commercial transaction?

    I think having an understanding about the nature of the review would perhaps help guide us better with respect to how we turn out our report.

     Okay. I appreciate those two points. That's something that, in my view, we can include in the letter for clarity.

    I don't see any discussion on those two points that you bring up.

    Like I said, we will draft the letter. I'm going to send it out to members of the committee in advance of sending it, so if there are any comments or clarification that you need on that letter, then I would appreciate input. We'll try to do that, probably, by the beginning of next week, during the break week, if that's okay, just to give a bit of time to draft it.

    Some hon. members: Agreed.

    The Chair: All right. Thank you for bringing that up. Again, I was thinking...but I just wasn't quite sure how that would be formatted. I appreciate the guidance from the committee.

    I see no other business.

    Mr. Fortin and Mr. Martel, I thank you for joining us today.

    The meeting is adjourned.

    Thank you.