On Wednesday, May 8, the Information Commissioner for Canada, Suzanne Legault, appeared before the House of Commons Standing Committee on Access, Privacy and Ethics to discuss the Main Estimates, the budget needs for the operation of her office. After her presentation she was asked a question regarding C-461.  C-461, “The CBC and Public Service Disclosure and Transparency Act,” is my Private Member’s Bill. It attempts to bring greater transparency to the Canadian Broadcasting Corporation and the public service as a whole.

The Information Commissioner was asked specifically about how she felt about exclusions.  She indicated that she would be preparing a written brief on the subject because the entire subject matter is complicated.  The complexity arises from the use of three words, all starting with the letter “e,” which in common use all mean the same thing.  But in the context of Access to Information legislation, the nuances of the respective “e” words are very different.

The words are exclusion, exemption, and exception.

In the context of the “Access to Information Act,” exclusion would mean that the Act does not apply to a certain situation or class of documents. As the Act is inapplicable, the Information Commissioner has no powers of review with respect to the particular situation.

Meanwhile, an “exception” is used to narrow an “exclusion.”  The Act generally would not apply “except” in specific situations.   This combination is employed in the current 68.1 of the Access Act regarding CBC records:

68.1 This Act does not apply to any information that is under the control of the Canadian Broadcasting Corporation that relates to its journalistic, creative or programming activities, other than information that relates to its general administration.

So the current Act creates an exclusion for CBC’s journalistic, creative, or programming records, but then creates an exception to the exclusion for matters relating to general administration.  The Federal Courts have referred to this as “not a model of clarity because the exclusion is subject to an exception” which creates a “recipe for controversy” and eventually leads to expensive litigation.

My Private Member’s Bill repeals the exception to an exclusion clause (68.1) and proposes a discretionary exemption.  An “exemption” means that although the documents are not excluded from the Act, they are exempt from disclosure.  As the documents are not excluded from the Act, the decisions of Access Officers are fully reviewable by the Information Commissioner.

The Information Commissioner clearly stated her preference for “exemptions” over “exclusions.” She told the Committee that the litigation between her and the CBC over 68.1 “was not about substance. […] CBC argued because it was an exclusion, I did not have a right to review the complaints. […] I was not allowed to review the records.”

She continued: “My personal view as Information Commissioner does not support exclusions to be appropriate as a matter of principle.”  Commenting on the Government’s stated intent to amend C-461 to provide exclusion for journalistic confidential source documents, she stated: “I profoundly believe there should be independent review of Government decisions regarding access to information. This does not mean that the information gets disclosed, because still after a review, we can recommend against disclosure.”

Finally, the Information Commissioner indicated that since 2007 she has received 1200 cases (complaints) related to the Canadian Broadcasting Corporation, of which 200 remain outstanding.  According to Ms. Legault, not a single one of those files relates to the CBC’s journalistic sources.

Accordingly, it appears to me that the Justice Department’s intended amendments to provide an exclusion to protect journalistic source confidentiality is a solution in search of a problem.

Moreover, as exclusions preempt the Information Commissioner’s ability to review matters and complaints, the inevitable result will be confusion and probable litigation.

I agree with the Information Commissioner that a discretionary exemption is far superior to a blanket exclusion as it is consistent with the purpose of the Access to Information Act as enunciated in section 2: “that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.”

As an Officer of Parliament (not Government), the Information Commissioner is the appropriate person to adjudicate disputes and determine when a discretionary exemption is applicable.

In what may be a landmark ruling on how the House of Commons operates and the ability of the respective party whips to attempt to cajole their Members, the Speaker of the House, Andrew Scheer, held that Members were indeed free to speak (or at least attempt to) regardless of their leadership’s wishes.

The Speaker held that, although the House has generally been well served by the so called “lists” provided by the parties, the Speaker was not bound by said lists. “The Chair has the authority to decide who is recognized to speak is indisputable and has not been trumped by the use of lists,” declared the ruling.

The Speaker did not establish new rights for backbench Members of Parliament, he re-affirmed rights that have always existed: “The right to seek the floor at any time is the right of each individual Member of Parliament and is not dependent on any other Member of Parliament.”  In other words, no Member (including a Whip) can prevent another Member from seeking the floor.

The Speaker was also quite clear that the right to participate and speak is not exclusive to Members’ Statements.  The Speaker’s absolute discretion to recognize a Member to speak applies to all House proceedings including Question Period and during debates on Legislation.

So how have Members responded to this always present, but recently rediscovered, right to rise and attempt to be recognized by the Chair?  Observers of Question Period and Members’ Statements have probably noticed very little change in the proceedings.  But there have been some important, albeit incremental, developments.  On Wednesday Mark Warawa, the central figure in the debate about the Whip’s ability to vet Member’s Statements, rose, was acknowledged, and delivered an innocuous Statement concerning his riding. Warawa was not on Wednesday’s “list.”

During Question Period, Leon Benoit and Elizabeth May both rose, but neither was recognized by the Speaker.  Benoit tried again on Thursday with no greater success.  However, something interesting also occurred during a “Liberal” slot.  Both Mark Garneau and Carolyn Bennet rose simultaneously.  The Speaker recognized the Member for Westmount-Ville Marie (Garneau), but Carolyn Bennet delivered the next question.  I suspect she was the one on the list, but the Speaker did what he said he would do – he was guided, but not bound, by the lists.

So there have been some minor, but important changes as to how the House operates.

I have been asked by several media outlets whether I intend to avail myself to this reestablished opportunity.  The answer is “yes,” though I have not yet done so.  The reason (and I believe the reason is important to an understanding as to why we have noticed only incremental change in the operation of the House) for this is that a rediscovered right or opportunity should not be deployed capriciously or in a cavalier manner.  I did not advocate for a Member’s ability to speak freely just so that Members could speak merely to hear the sound of their own voices.  They should reserve the opportunity and indeed the privilege to speak in the House to occasions when they have something substantial to say.

But Members must avail themselves of that ability to attempt to be recognized on occasions when that Member has something important to say, because the right to speak freely in this House was not so much taken away by the leadership as it was voluntarily ceded.

So it is up to us now; the Speaker has reaffirmed a MPs right to stand and be recognized:  “If Members want to be recognized they must actively demonstrate that they wish to participate.  They have to rise in their places and seek the floor.” Fair and wise ruling, Mr. Speaker!