Remarks by the Information Commissioner of Canada Senate Standing Committee on Legal and Constitutional Affairs Bill C-58

An Act to amend the Access to Information Act and the Privacy Act and to make consequential amendments to other Acts

Clause by Clause Review

Wednesday, April 3, 2019

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Honourable Senators,

Thank you for the opportunity to appear before you today during your clause by clause review of Bill C-58.

I am joined by two officials from my office: Marie-Josée Montreuil, Senior Counsel, and Allison Knight, Senior Director of Investigations.

I would like to make a few comments about the amendment you have before you, the intent of which would be, I believe, to change the way the Federal Court of Canada conducts its review of cases investigated by the Information Commissioner.

In theory, it is fair to say that judicial review of the Information Commissioner’s orders would be the optimal model.

Unfortunately, in my view, implementing such a model at this particular time would require more than amendments to a few selective clauses in Bill C-58. I would respectfully submit that implementing a judicial review model requires a comprehensive review of the Access to Information Act and careful consideration of the changes it would bring to my office’s administration.

For example, an advantage of judicial review of the Information Commissioner’s orders is that institutions would have to present their best evidence and arguments during my investigation, as there would be no opportunity to present new evidence before the Court or raise arguments that were not made before me. On the flip side, the decision-maker is generally not a party before the Court in a judicial review application. If this committee wishes to adopt this amendment, consideration ought to be given as to whether the Commissioner should be granted standing before the Court. Furthermore, if this standing is granted, the extent that the Commissioner would participate in a judicial review should also be considered, perhaps using Ontario, British Columbia and Alberta as examples.

Also, in a model that implements judicial review of administrative decisions, the Courts generally show deference to expert decision-makers. If such a model was adopted in Bill C-58, the Information Commissioner’s orders would likely attract that same degree of deference from the Court, given the Commissioner’s expertise in access to information. Importantly, however, neither the Act nor the bill is currently designed to support an adjudicative model that would lead to a judicial review of my orders. For instance, under a true adjudicative model, there would need to be a separation of the mediation, investigative and adjudicative functions at my office. 

Finally, the financial and practical impact of adopting a judicial review model should not be discounted. To my knowledge, the mechanics of implementing this model at the Federal level has not been studied at this point.

As I said in October, I see Bill C-58 as a step in the right direction and an improvement on the current legislation.

If passed, Bill C-58 would give me the authority to issue orders and will allow me to publish these orders and all reports of findings. It would also place public pressure on institutions to follow orders and create a body of jurisprudence, providing future clarity for institutions and requesters in the interpretation of the Act.  Finally, the Bill requires a regular mandatory legislative review, something the Act does not currently include.

Altogether, I find that even though Bill C-58 is not perfect, it constitutes an improvement on the status quo. Based on your discussions, I fully expect that the topic of judicial review would come up again during the one-year review. At that time, I will be in a better position to provide evidence about how the proposed model in Bill C-58 is serving Canadians in obtaining information they are entitled to.

In closing, I would like to thank the members of this committee for the opportunity to present my views on this topic. I will be pleased to answer any questions you might have.

Thank you.

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