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A particularly troubling low point was the former Liberal government’s refusal to accept the expressed will of Parliament (and its own promise) to introduce a bill to amend and strengthen the Access to Information Act. Instead, the former government pushed legislative proposals (such as the so-called whistleblower protection law) that derogated from the right to know, and took specific decisions to deprive the Information Commissioner of sufficient funds to perform his watchdog function.
Equally concerning were the actions taken by the former Liberal administration at the end of the Information Commissioner’s seven-year term (the term expired on June 30, 2005). Prior to the end of the Information Commissioner’s term, Parliament voted by overwhelming majority – including the Liberal government’s front benches – to extend the Information Commissioner’s term by one year. Subsection 54(3) of the Access to Information Act permits such a course of action. It provides:
"The Information Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding seven years."
The former Liberal government rejected the expressed will of the House of Commons in two disturbing ways. First, the former government announced that the commissioner’s term would be extended for only three months; second, it effected the extension of term pursuant to subsection 54(4) of the Access to Information Act, rather than pursuant to subsection 54(3), quoted above.
Subsection 54(4) of the Act states:
"In the event of the absence or incapacity of the Information Commissioner, or if the office of Information Commissioner is vacant, the Governor in Council may appoint another qualified person to hold office instead of the Commissioner for a term not exceeding six months, and that person shall, while holding that office, have all of the powers, duties and functions of the Information Commissioner under this or any other Act of Parliament and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council."
The clear words of subsection 54(4) indicate that this provision is not intended for dealing with the renewal, extension, or re-appointment of a sitting information commissioner. The section specifically refers to "absence or incapacity of the Information Commissioner or if the office of the Information Commissioner is vacant". None of these conditions existed when the former Liberal administration invoked subsection 54(4) to extend the Information Commissioner’s term by three months. The section also uses the phrase: "… may appoint another qualified person to hold office instead of the commissioner… ." The former Liberal government used this provision to extend the sitting commissioner’s term; it did not appoint another person in the commissioner’s stead.
Why would a government take this course? What is the practical distinction between extending the term of a sitting information commissioner pursuant to subsection 54(3) and doing so pursuant to subsection 54(4)?
The distinction is significant, and it is this: a re-appointment pursuant to subsection 54(3) preserves the independence of the commissioner. It preserves his or her protection against dismissal by the government (the Act requires approval of the House and Senate for dismissal) and it preserves the salary protection which the Act gives to commissioners (commissioners must be paid a salary equal to the salary of a judge of the Federal Court). On the other hand, a person appointed pursuant to subsection 54(4) has no statutory protection against summary dismissal by the government and the government retains sole discretion to set the appointee’s level of remuneration.
In other words, a person re-appointed pursuant to subsection 54(3) is the Information Commissioner of Canada and a true Officer of Parliament, whereas a person appointed pursuant to subsection 54(4) is an "at pleasure" appointee of the government-of-the-day charged with carrying out the commissioner’s functions.
The former Liberal administration adopted the same troubling approach a second time when it extended the commissioner’s term for a further six months to March 31, 2006. For nine months, thus, Canadians have not had the benefit of an information commissioner who is, in law, independent of government.
Effective April 1, 2006, the Conservative government also invoked subsection 54(4) of the Act to extend the commissioner’s term by six months. Given the flawed approach taken by the previous Liberal administration, the Conservative government had little choice but to repeat the error until Parliament returns and an information commissioner can be appointed with full independence of government and genuine Officer of Parliament status.
In the process of reforming the Access to Information Act, care must be taken by Parliament to remove from future governments the opportunity to interfere with the Information Commissioner’s independence in end-of-term situations.