Office of the Information Commissioner of Canada
Ottawa, Ontario May 3, 2016
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I am tremendously honoured to be here with you today on World Press Freedom Day, particularly since this year, it coincides with the 250th anniversary of the world's first freedom of information law in Sweden and Finland. World Press Freedom Day celebrations give us all an opportunity to highlight the links between freedom of the press and the right to access government information.
I thank the organizers, the Canadian Committee of World Press Freedom, for having invited me. I thank you all for the great honour you have bestowed upon me with the Spencer Moore Lifetime Achievement Award. This award I share with my trusted colleagues at the Office of the Information Commissioner of Canada, and more particularly with Nancy Bélanger, Layla Michaud, Josée Villeneuve, Adam Zanna, and Christian Picard who are here with me today.
As I was preparing for this presentation however, I started getting quite anxious. What could I possibly say to this illustrious group of professional writers, professional storytellers, professional freedom of expression defenders?
After a few hours of hand wringing over the keyboard of my computer, I decided that the most obvious thing to do was to tell you a story of my own.
I grew up in East Montreal. My parents were of modest means. Like most of their peers, they stopped school early and started their working life when they were quite young. We did not have a lot of books in our house. This was unfortunate for me as I became an avid reader very early on. When I was about 14, I had a tremendous stroke of luck. We moved to a new neighbourhood and I had to change school. This school happened to be an old convent and it had the most amazing library.
I started reading everything indiscriminately from Balzac to Molière to Zola to Sartre. Eventually, I encountered George Orwell's 1984.
And so Winston Smith is the first hero of my story today. As you may recall, Winston worked at the Ministry of Truth, in the Records Department, which, as Orwell described, was concerned with news. Winston's job was to rectify the news so that it conformed to the Party's wishes.
He spent his days rewriting history and sending the revised versions into memory holes. He erased the past and created the perpetual truth of the Party.
I remember being so impressed by the foresight and the intelligence of Orwell's rendition of the Big Brother totalitarian state and how lucky I was to be living in a healthy democracy. The world of the Party controlled state was at a safe distance from Canada, or so I thought at the time.
A little while later, actually in 1984, I started law school. This was just after the Canadian Charter of Rights and Freedoms and, fittingly, the Access to Information Act came into effect. I did not realize at the time how important these laws would become in my professional life.
And law school is where the second hero of my story enters the scene, Mr. Roncarelli.
Mr. Roncarelli was a restaurant owner in Montreal's west end. He was a Jehovah's Witness and he had a habit of posting bail for Jehovah's Witnesses who had been arrested for distributing religious literature contrary to a municipal by-law. The then Premier of Quebec, Maurice Duplessis, did not like what Mr. Roncarelli was doing.
He decided that he would speak with the head of the Liquor Commission at the time and instruct him to revoke Mr. Roncarelli's liquor licence for his restaurant. As a result, Mr. Roncarelli lost his business and he sued Maurice Duplessis for damages. The case went all the way to the Supreme Court of Canada. The Court found in favour of Mr. Roncarelli and awarded him damages. The Court, in its famous decision, stated that this was a gross abuse of legal power expressly intended to punish Mr. Roncarelli from an act wholly irrelevant to the issuance of a liquor licence. A punishment which inflicted on him, the destruction of his economic life. Mr. Duplessis interfered with the administration of the Liquor Commission by causing the cancellation of the liquor permit. This involved the exercise of powers which, in law, he did not possess at all. This case is still taught in law schools all over Canada today as the example of the use of arbitrary power by the state against its citizens and for the concept of the rule of law in Canada. To me, Mr. Roncarelli embodied the courage that we must all have in denouncing what is simply wrong.
Why, you may wonder by now, am I telling you these stories.
I am telling you these stories because they form the foundation of our final chapter and because last year I found myself rereading Orwell's 1984 and the Roncarelli case.
Enter our third hero, Mr. Bill Clennett.
Mr. Clennett is a social and political activist who is concerned about gun violence and, particularly, violence against women. In 2012, shortly before the previous government's bill to End the Long Gun Registy became law, Mr. Clennett made an access to information request for the data contained in the long gun registry hosted at the RCMP.
As soon as I became aware that ELRA had passed I became concerned about the rights of requesters as I knew that requests had been made for the data. I wrote to then Minister of Public Safety to remind him of the rights of access and the obligation to retain all information until all proceedings under the ATIA would be concluded. The Minister assured me that requesters' rights would be preserved – twice.
In October 2012, all data in the registry was destroyed, but for the Quebec data, which was the subject of a parallel court challenge.
In February 2013, Mr. Clennett received some information but, being unsatisfied with the records he obtained, complained to my office. After a lengthy investigation, I concluded that the RCMP had not provided all responsive records and that they should provide the additional responsive records contained in the Quebec registry. I also referred the matter to the Attorney General of Canada for a criminal investigation under section 67.1 of the ATIA dealing with the wilful destruction of records subject to an access request.
The dates here are really important to understand the events that followed.
I sent my letter of recommendations to the Minister of Public Safety and my referral to the AG on March 26, 2015. The government at the time, asked for an extension of time to respond. On April 30, the Minister of Public Safety responded that he did not accept my recommendations. I did not hear anything at that time about the referral to the AG.
On May 7, 2015, the government tabled Bill C-59, the Economic Action Plan, the budget bill. This budget bill, unbeknownst to me at the time, contained two provisions of interest to our case. Sections 230 and 231 of Bill C-59 did not have much to do with the budget exercise. In fact, it had to do with the ELRA and the access to information act. These two provisions rendered the Access to Information Act retroactively non applicable to the long gun registry. It also provided retroactive immunity to the Crown for any administrative, civil or criminal proceedings relating to the destruction of the long gun registry.
I later learned that the matter of the wilful destruction of the data was referred to the Director of Public Prosecution on May 6, 2015.
On May 8, the matter was referred from the Director of Public Prosecutions to the OPP.
What followed in the next few days is a story that no Information Commissioner should ever have to tell.
We tabled a Special Report to Parliament to inform parliamentarians of the underlying story behind sections 230 and 231 of the budget bill. I remember testifying in the House of Commons and looking at the ceiling with the fresco of the scales of justice. I could not believe that parliamentarians would allow this to pass, but they did, in both the House of Commons and the Senate.
Before the bill became law, we enlisted the help of two learned counsels, Marlys Edward and Rick Dearden. We started working on preserving Mr. Clennett's rights of access in the Federal Court, seeking and obtaining a preservation order for the remaining records. Just before the law passed we applied to the Ontario Superior Court for an order:
Declaring that these provisions infringe or deny section 2(b) of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression and,
an order declaring that the retroactive expungement of vested rights of access to government information and to access a Court to enforce those rights violate the constitutional principles of the rule of law and judicial independence, and
an order that the retroactive immunization from all administrative, civil or criminal proceedings for the conduct of government officials that interferes with vested rights of access to government information violates the constitutional principle of the rule of law.
In September of 2015, the OPP advised us that they would not conduct an investigation as there existed no criminal offence.
Both court actions are pending. Negotiations with the newly elected government are ongoing. I am hopeful that this story will come to a happy ending.
World Press Freedom Day 2016 is entitled: Access to Information and Fundamental Freedoms: This is your Right!
In Canada, we are fortunate to have Charter protection for our fundamental freedoms, freedom of thought, belief, opinion and expression, including freedom of the press. As one can read from the Library of Parliament website, the rule of law means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law – not the government; not the prime minister, or any other minister. If anyone were above the law, none of our liberties would be safe.
Last year, we witnessed an attempt by the government to nullify requesters quasi constitutional right of access to information, to nullify this person's rights to freedom of expression, to nullify our fundamental right to live in a state governed by the rule of law. The government at the time stated that it was merely fixing a loophole. I testified before the parliamentary committees of both the House of Commons and the Senate that in fact the government was creating a black hole.
More fundamentally, what we witnessed was the government attempting to send all this history down the Memory Holes of the Records Department of the Ministry of Truth.
Lets just all make sure that nothing like this ever happens again in Canada. These are our rights and we must protect and defend them vigorously.
There are indeed some stories I would prefer never to have to tell again.