Beeby: World Press Freedom Day — Applying Canada’s Freedom of Information Law

The law that is supposed to give Canadians access to federal government records needs some teeth.

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Like most newborns, the Access to Information Act had no teeth when it came into force in 1983.

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One section created a fine of $1,000 for obstructing any investigation by the Information Commissioner (which was never imposed). Otherwise, officials who break the law are not subject to any sanctions or penalties. It was like a highway code that imposes speed limits, but without fines, jail time or other consequences. It just invites trouble.

Trouble came quickly. The tainted blood scandal of the 1980s led to the Krever Inquiry. The brutal death of a Somali teenager by soldiers in 1993 led to the Somalia Inquiry. Both investigations revealed that public officials had destroyed, altered, tampered with, lost and withheld key documents.

Freedom of information expert Ken Rubin highlighted other violations in unrelated cases in the 1980s and 1990s. John Grace, then Information Commissioner, proposed in his 1996 annual report -1997 that the law provides for a prison sentence of up to five years for obstructing the right of access.

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A Liberal backbencher decided to do something. In 1997, MLA Colleen Beaumier from Brampton West-Mississauga introduced a private member’s bill. C-208 would impose prison terms of up to two years and fines of up to $10,000 for anyone who deliberately obstructs access.

Colleen Beaumier, then Liberal MP for Brampton West.
Colleen Beaumier, then Liberal MP for Brampton West. n / A

“We must send a strong message that these acts of destruction will not go unpunished,” Beaumier told the House of Commons. She told me later that she got minimal support from then-Prime Minister Jean Chrétien, but Reform Party leader Preston Manning backed the measure. His amendments became law in 1999.

The big stick, however, didn’t make the obstruction problem go away. In 2008, the National Gallery of Canada alerted the RCMP to an incident in which sensitive government emails about an employee were deliberately deleted. A public servant was fired and Information Commissioner Suzanne Legault conducted her own investigation, advising the justice minister of the likely commission of a crime under the Beaumier Amendments.

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After two years, the RCMP dropped their investigation and laid no charges, without explanation.

In 2009, an aide to the Minister of Public Works, Christian Paradis, improperly blocked the release of a document I had requested under the Access to Information Act. Legault’s 2011 report on the incident called it a clear case of political interference. She alerted the Minister of Justice, who called the RCMP. The RCMP dropped its preliminary investigation later in 2011 without any charges or explanation.

Legault investigators found further evidence of interference by Paradis staff in other access requests, but nothing further was referred to the RCMP. To date, no one has ever been charged under the Beaumier Amendments. Its deterrent effect is questionable in light of these seemingly obvious instances of obstruction. Establishing criminal intent apparently sets the bar too high for prosecution.

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Information Commissioner Caroline Maynard: Her orders do not have the legal gravity of a federal court order, so ignoring them does not result in contempt of court charges.  She has used this new power sparingly so far.
Information Commissioner Caroline Maynard: Her orders do not have the legal gravity of a federal court order, so ignoring them does not result in contempt of court charges. She has used this new power sparingly so far. .jpg

In 2019, changes to the law aimed to give it some teeth. The Information Commissioner has been given order-making power, but in a watered-down form. His orders lack the legal gravity of a federal court order, for example, so ignoring them does not result in contempt of court charges. She has used this new power sparingly so far. It is too early to judge the impact.

Treasury Board is currently undertaking a statutory review of the Access to Information Act and its administration. Users of the law complain of a “culture of delay” which delays the release of documents (for 80 years in an extreme case). “Participants felt that this culture of delay has become normalized due to a lack of enforcement or the consequences of missing deadlines,” a report on the consultations says. Some groups want administrative fines imposed on institutions that do not meet the deadlines set by law.

The Treasury Board review is essentially an inside job, so the officials running it are unlikely to come up with ways to penalize themselves. Instead, we need public-spirited parliamentarians like Beaumier to step up again and give the law some real teeth. And we need an appropriate policing regime to hold to account officials who deliberately violate the existing protections of the law.

Retired journalist from Radio-Canada Dean Beeby is a director of World Press Freedom Canada and an expert on Canadian freedom of information law.

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