2013 Letter to the Minister of Justice and Attorney General of Canada
December 23, 2013
The Honourable Peter Gordon MacKay, P.C., M.P.
Minister of Justice and
Attorney General of Canada
284 Wellington Street
Ottawa, ON K1A 0H8
I am writing to seek your support in ensuring that my office is consulted during the drafting phase of government legislation that amends or impacts on the Access to Information Act (Act).
Section 5.2 of the Privy Council Office’s “A Drafter's Guide to Cabinet Documents”, which would include proposed legislation, states that “[d]rafters are responsible for ensuring that other affected departments and agencies are adequately consulted in advance about upcoming proposals and that coordination across portfolios is pursued.”
My office, as the statutory authority that exercises the first level of independent oversight pursuant to the Act, has a unique perspective on the functioning and implementation of the Act which establishes a quasi-constitutional right to access government information. This right has, in certain circumstances, also been characterized as constitutional in nature.
In the second session of the 41st Parliament, there have been a number of bills introduced that have proposed changes to the Access to Information Act. These bills include Bill C-3, Safeguarding Canada's Seas and Skies Act, Bill C-5, Offshore Health and Safety Act, and Bill C-15, Northwest Territories Devolution Act. My office was not consulted prior to the introduction of these bills.
I note that in the past, my office has been consulted by Department of Justice officials when changes are proposed to Schedule I of the Access to Information Regulations. This has allowed us to provide officials with our views prior to changes coming into force.
I believe the perspective that can be brought forward by my Office, which is affected by changes to the legislative scheme that it oversees, is unique and would make a valuable contribution to the development of such legislation.
I would be pleased to meet with you and your officials to discuss the possible involvement of my office at an earlier point in the legislative process.
c.c.: The Honourable Peter Van Loan, P.C., M.P., Leader of the Government in the House of Commons
William F. Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, Justice Canada
A Drafter's Guide to Cabinet Documents
5.2 Interdepartmental Meetings
Drafters are responsible for ensuring that other affected departments and agencies are adequately consulted in advance about upcoming proposals and that coordination across portfolios is pursued. These consultations ensure that cross-cutting issues are recognized and properly addressed in proposals and that other Ministers are prepared for Cabinet discussion. To this end, drafters should also share an early version of the Cabinet paper with other departments and agencies.
In addition, an interdepartmental meeting must be held after the central agencies meeting and central agency comments have been addressed. Central agency analysts should be invited to participate in the interdepartmental meeting. For presentations, interdepartmental meetings are required at least three weeks prior to the scheduled Cabinet committee meeting date.
These interdepartmental consultations provide an opportunity for drafters to receive expert advice from their colleagues and for other departments and agencies to obtain additional information with which to brief their Ministers. Interdepartmental meetings are also a forum for addressing any concerns raised by other departments and agencies. When departments directly involved in a proposal differ on a matter, the dispute should not be referred to Cabinet or a Cabinet committee until all other means of resolving the issue have been exhausted.
The Clerk’s meetings with Deputy Ministers also provide an opportunity to review high-priority policy issues in advance of their submission for Cabinet consideration.