The day before Parliament adjourned for a two week Easter Break, my Private Member’s Bill C-461, “The CBC and Public Service Disclosure and Transparency Act,” passed Second Reading in the House of Commons by a vote of 155-127. I was surprised and disappointed by the closeness of that margin.
The debate preceding the vote was similarly disappointing, focusing on conspiracy theories as to why the Bill was being introduced rather than on the merits (or the deficiencies) of the legislation.
Regarding the CBC, the Bill corrects a well-recognized defect in the “Access to Information Act,” which allowed the CBC to skirt the authority of the Information Commissioner. This resulted in well publicized litigation between the two parties: both the Federal Court and the Federal Court of Appeal ruled against the CBC and determined that when a dispute existed, the CBC must disclose the documents to the Information Commissioner for a determination. PMB C-461 corrects the defect and reinforces the Courts’ rulings. It also recognizes the uniqueness of a public broadcaster and therefore adds protection in the form of a prejudice test. CBC would not be subject to disclosure, if it would result in an injury (prejudice) to its competitive, programming or journalistic independence.
The NDP predictably took the position that the legislation is an attack on the CBC and voted against it. Although the Liberal Access and Privacy Critic voted in favour of the Bill, the rest of his caucus similarly voted “nay.”
Yesterday, I appeared before the House of Commons Standing Committee on Access, Ethics, and Privacy to explain and defend the Private Member’s Bill.
The Bill is not an attack on the CBC. Transparency is not the enemy of the public institution, opaqueness is. Transparency leads to trust, trust that there is proper stewardship over public resources. Opaqueness leads to mistrust, suspicion that the government institution is, or at least might be, exercising improper stewardship. CBC has its detractors to be certain; part of the mistrust is the suspicion that inevitably results from secrecy. This legislation promotes transparency, accountability and ultimately the trust that the CBC is, or at least can be, good stewards of taxpayer resources.
The Parliamentary Secretary to the Minister of Justice indicated at Second Reading that although the Government supports this part of C-461, they are proposing a most unhelpful amendment. They want to remove documents regarding journalistic source privilege from the ambit of the Act through an “exclusion.” I fully support, conceptually, protecting journalistic source confidentiality; the problem is that I am not sure it can be drafted given the broad powers given to the Information Commissioner under s.36 of the “Access” Act.
That Section empowers the Commissioner to compel persons, take evidence, enter government offices without warrant and examine ANY record and that “no such record may be withheld from the Commissioner on any grounds.” How the lawyers at the Justice department believe they can draft an exclusion that can coexist with the unfettered discretion afforded the Information Commissioner remains a mystery to me. Moreover, said legal advisors seem unaware of the 2010 Supreme Court of Canada decision in “R v. National Post”. The High Court held that protection of confidential journalistic sources is not absolute and must be weighed against other factors including the investigation of a crime. Accordingly, a journalist’s claim for protection of confidential sources must be assessed properly using a case-by-case model of privilege employing a four criteria test developed by esteemed Professor Whigmore.
Who is going to apply the four pronged Whigmore test to determine (as it will in most cases) that source privilege must be protected if CBC is to be given an exclusion? Is CBC to be party to, and adjudicator of, disputes to determine if journalistic source privilege is applicable?
Sadly, if the Justice lawyers are able to amend C-461 in the manner they have indicated they intend to, the answer will be yes.
However, the damage the Justice Ministry intends to inflict upon the “CBC and Public Service Disclosure and Transparency Act” regarding journalistic source privilege is minor compared to its proposed “gutting” of the salary disclosure requirements proposed for all federal government institutions. I will discuss this further in my next blog.