Remarks by the Information Commissioner of Canada
Standing Senate Committee on National Finance

Subject matter of Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures

June 3, 2015

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Honourable Senators,

I have been invited to discuss Division 18 of Bill C-59, specifically clauses 230 and 231. This Division amends the Ending the Long-gun Registry Act, or the ELRA, to exclude the operation of the Access to Information Act retroactive to October 25, 2011, the date on which ELRA was first introduced in Parliament.

To assist parliamentarians in understanding the impact of these provisions, I tabled a special report on May 14 entitled Investigation into an access to information request for the Long-gun Registry. I have also outlined the relevant facts in the timeline you have in front of you.

In October 2011, the government introduced Bill C-19, the ELRA before Parliament. The Bill made no mention of the Access to Information Act.

In March 2012, an individual made an access to information request to the RCMP to obtain a copy of all the information contained in the Long-gun Registry.

In April 2012, ELRA becomes law. ELRA does not oust the application of the Access to Information Act. Pursuant to Section 4 of the Access to Information Act, the Act applies notwithstanding any other Act of Parliament.

In April 2012, I wrote to the Minister of Public Safety, the Honourable Vic Toews, to inform him that “any records under the control of the Commissioner of Firearms and/or the Canadian Firearms Program, for which a request has been received under the Act before the coming into force of subsection 29(1) of the new Act are subject to the right of access and cannot be destroyed until a response has been provided under the Act and any related investigation and court proceedings are completed.” In May 2012, Minister Toews responded, and I quote, that “the RCMP will abide by the right of access described in section 4 of the Act and its obligations in that regard”.

Between October 25 and October 29, 2012, the RCMP destroyed all electronic records of non-restricted firearms, with the exception of those belonging to Quebec residents.

In January 2013, the RCMP responds to the access request made in March 2012. In February 2013, the requester complains to my Office on the basis of three allegations:

  1. That the information provided is incomplete (missing both columns and registrations);
  2. That the RCMP did not justify the incomplete response;
  3. That by destroying the responsive records, the RCMP obstructed the complainant’s right of access, pursuant to section 67.1 of the Act.

I conducted an investigation, and I concluded that the response was incomplete.

In March 2015, I wrote to the Minister of Public Safety, the Honourable Steven Blaney, to report the results of my investigation and to make the following recommendations:

  • To process the information relating to the registration of non-restricted firearms in the province of Quebec (64 fields identified in the course of my investigation) and include this information, subject to applicable exemptions, in a new response to the requester.
  • To process all images of the registration and transfer applications that still exist within the Canadian Firearm Information System (CFIS) pertaining to non-restricted firearms and include this information in a new response, subject to applicable exemptions, to the requester; and
  • To preserve these records until the conclusion of my investigation and any related proceedings.

On the same day, I also referred to the Attorney General of Canada, the Honourable Peter Mackay, evidence of the possible commission of an offence under section 67.1 of the Access to Information Act, which deals with the destruction of a record with the intent to deny a right of access under the Act.

In April 2015, the Minister of Public Safety, the Honourable Steven Blaney, informed me that he would not implement the first two recommendations of my investigation report. With respect to the third recommendation, the Minister acknowledged that the RCMP had already provided me with assurances that a backup copy of the records would not be destroyed.

Since then, I learned through media reports that the Attorney General referred the matter to the Director of Public Prosecutions, who in turn referred it to the Ontario Provincial Police for investigation.

On May 7th, 2015, Bill C-59 was tabled in Parliament. As you know, I have serious concerns with Division 18 of this Bill.

First, this Division will effectively make the Access to Information Act non-applicable, retroactive to October 25, 2011, even before the coming into force of ELRA. You must ask yourself why?

Second, Division 18 shields from the application of the Access to Information Act a broader scope of records than ELRA ever did. It covers not just the records in the Long-gun Registry as ELRA did, but any records with respect to the destruction of those records.

This probably means that no one will be able to request information about whether the RCMP has really deleted his or her information from the Registry or about how much the destruction of the Registry cost Canadian taxpayers. Indeed, no one will be able to find out what transpired in relation to the destruction of the records at issue in my investigation. This is above and beyond what was ever considered by Parliament in 2012. You must ask yourself why?

Third, if Division 18 is adopted, it would potentially

  • nullify the request at issue in my investigation;
  • nullify the complaint made to my Office;
  • nullify my entire investigation, including production orders‒some 30,000 records‒and examinations of witnesses under Oath;
  • nullify my recommendations to the Minister of Public Safety and my referral to the Attorney General;
  • nullify my application to the Federal Court;
  • nullify the police investigation referred to the OPP;
  • nullify all potential administrative, civil or criminal liability of any of the actors involved; and
  • essentially nullify the requester’s right in this case.

You must ask yourself why?

These proposed changes, Mr. Chair, would retroactively quash Canadians’ right of access and the government’s obligations under the Access to Information Act. It will effectively erase history.

Mr. Chair, Division 18 of Bill C-59 is not an attempt to close a loophole; but rather it is an attempt to create a black hole.

Given the fundamental importance of the right of access and the rule of law in Canadian democracy, I would urge this committee to remove Division 18 (clauses 230 and 231) from this Bill.

With that I would be pleased to answer your questions.

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