REMARKS BY THE INFORMATION COMMISSIONER OF CANADA SENATE COMMITTEE ON BANKING, TRADE AND COMMERCE REVIEW OF THE PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST FINANCING ACT (S.C. 2000, C. 17), PURSUANT TO SECTION 72 OF THE SAID ACT

THURSDAY, FEBRUARY 16, 2012

CHECK AGAINST DELIVERY

Dear Mr. Chairman,

Thank you for your invitation to speak before your committee as part of your review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

First, since this is my first time appearing before your committee, allow me to briefly describe the nature of my role.  The Information Commissioner position is a senior officer of Parliament appointed under the Access to Information Act.  I began my seven-year mandate on June 30, 2010, after being acting commissioner for one year.  A large part of my mandate involves investigating complaints submitted by individuals and organizations who feel that federal institutions have not respected their rights under the Act. 

I am supported in my duties by the Office of the Information Commissioner of Canada, an independent government agency created in 1983 under the Access to Information Act to foster the resolution of public complaints regarding access to government information.

As part of our investigations, we can use mediation and suasion to facilitate dispute resolution. We refer cases to the Federal Court of Canada and intervene in cases that involve key legal principles.

In preparing for my appearance this morning, I looked over the comments of my predecessor during the review of the bill in 2000 and those of the Assistant Commissioner at the time of the statutory review in 2006.  During those appearances, Mr. Reid and Mr. Leadbeater expressed their concerns to the committee about what are, today, paragraphs 55(1)(a), (d) and (e) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the mechanism through which those provisions were passed, leading Commissioner Reid to describe them as creating a “black hole” in the machinery of government.

Those paragraphs exclude from the application of the Access to Information Act any mandatory or voluntary statements pertaining to financial operations connected with the commission of an offence involving money-laundering or the financing of terrorist activities. They also exclude any information prepared by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) from information it receives regarding suspicious transactions.

The mechanism used for adopting the paragraphs that I just mentioned is provided for in section 24 of the Access to Information Act. Section 24 excludes provisions in other legislation from the application of the Act.The exceptions incorporated through this section have increased in number over the past few years. When the Act was passed in 1983, 33 pieces of legislation were entered in Schedule II, which contains the list of exceptions. In 2000, there were 50 pieces of legislation entered in Schedule II and today, it contains 60 pieces of legislation. As I mentioned previously: “Section 24 is essentially a back door way of eroding access to information.”

Like my predecessors, I have concerns about paragraphs 55(1)(a), (d) and (e) of the legislation that is the subject of your review. The paragraphs in question result in the exclusion of documents requested mandatorily, irrespective of harm, the public interest or the passage of time. Even so, it is important to remember that the Access to Information Act, is based on fundamental principles namely that federal government information should be available to the public and that any exception to that right must be specific and limited.

The Access to Information Act contains exceptions to ensure that information is protected. There are exceptions pertaining to, among other things, national security, information obtained confidentially here and abroad, information on investigating techniques, and the protection of personal information. The Act even allows an agency to be excused from disclosing the existence of a document.

Moreover, it is enlightening to note that section 24 of the legislation that includes the aforementioned paragraphs has, to my knowledge, been cited only three times by FINTRAC since it was created.

Mr. Chairman, on the surface, I am of the view that the Access to Information Act contains the exceptions needed for protecting the information gathered by FINTRAC and that paragraphs 55(1)(a), (d) and (e) do not seem warranted to me. However, if the committee, after its deliberations, deems it appropriate to keep the existing exceptions to the disclosure of information pertaining to FINTRAC, I recommend that those exceptions be specified and incorporated directly into the Access to Information Act to maintain the integrity of the legislative framework and ensure that people requesting access have a clear idea of their rights.

Thank you for your attention. I will now be pleased to answer your questions.