Trudeau government undercuts transparency, while reinforcing secrecy

OTTAWA—The Trudeau government is showing contempt for transparency by now postponing any improvements to the federal access to information legislation, which is quite underhanded, given his grandstanding and election promises. But what his government would prefer not to state is that it has already been sabotaging promised transparency measures. This is particularly evidenced in Bill C-22 (the bill to create the National Security and Intelligence Committee of Parliamentarians) which will expand secrecy practices. Bill C-22 makes a mockery of Treasury Board President Brison and Prime Minister Justin Trudeau's central promise to give the information commissioner any semblance of real binding order powers by forbidding her office from reviewing national security matters the security and intelligence committee is denied. The bill also expands what's considered exempt as “national security," which will create in effect a new statutory national security exclusion provision that would override the Access to Information Act. It states that the new government-created secretariat to the National Security and Intelligence Committee "shall" refuse to disclose documents obtained for or created by the committee, creating a broad permanent exclusion. Even though Bill C-22 will add the new secretariat as a designated institution under the Access to Information Act, the secretariat will still be able to deny most access requests directed its way without recourse to the Information Commissioner's Office for review. Further, Bill C-22 allows broad new powers to government ministers and agencies to deny the National Security and Intelligence Committee access to documents it unilaterally deems to be “injurious” to national security. Ministers get increased powers to withhold data from the National Security and Intelligence Committee and, by inference, the public without having to document or explain in any detail their actions. As well, Bill C-22, in denying the security and intelligence committee any access to cabinet confidences, signals that the government is not backing away from keeping cabinet confidences broadly defined and outside the purview of any Access to Information Act reforms. Bill C-22 also increases the powers of the prime minister, who can decide what the committee sees or can release in its reports. These are enormous powers and sets in motion a dangerous precedent placing Canada's chief political operative in the access business of directly vetting, interfering, and denying records. Bill C-22 likely puts a damper on the Trudeau government claims that it will ever meaningfully extend the access coverage to ministers' offices and the Prime Minister's Office. It also raises the question of whether the now postponed promise of some limited coverage of some prime ministerial or ministerial administrative records deemed “appropriate" will ever be subject to some Information Commission review. The potential promise that Parliament or its committees could be covered by access-disclosure legislation is further clouded by such legislation. The members of the National security and Intelligence Committee of Parliamentarians are not set up ever to meet in public, only in private. They have restrictions on what they can see and report on, must be security cleared, have no parliamentary immunity, and can be subject to prosecution. They are accountable to the prime minister and not to Parliament and the public. It is not designed to be a strong committee with subpoena powers and wide access to documents involving national security. The committee has no recourse to judicial review or to an expert independent review body. The public has no recourse to independent review of the committee’s records or their classification. It is by far the most publicly unaccountable and likely most expensive committee involving Parliamentarians Canada has ever created. Critics of Bill C-22 had pointed out its many flaws as an initiative to create needed security and intelligence oversight. They had offered constructive suggestions and amendments at the House of Commons Public Safety Committee hearings towards strengthening such security intelligence overview. But the Trudeau government has now rejected most changes of any significance that would have ensured the proposed committee's more critical role and its access to materials it needs in order to do its job. The bill has now passed third reading in the House of Commons and goes on to the Senate for review. The government will want the Senate to give it quick passage without much change or a fight. Parliament and the public have been given a backseat with little knowledge of how the new Security Intelligence Secretariat and its committee will work. Under Bill C-22, they lose the right to critically examine security intelligence matters and any means of independent review and appeal. And the public has no recourse. The already weak Access to Information Act is further drastically gutted and Parliament and its legislative mandate is mortally weakened. Ken Rubin is an access to information advocate reachable at kenrubin.ca. The Hill Times