As she enters the final year of her term, Canada's information commissioner is making a heartfelt call to end the federal government's “culture of secrecy.” What she had feared came true: the ministries ignored her orders, a mechanism intended to improve access to information.
I admit to you that when I was appointed […] “I was a little naive,” admits Commissioner Caroline Maynard. I really expected it [à] They work hand in hand and collaborate with institutions, she said, emphasizing that access to information is still a quasi-constitutional right.
The obsolescence of the Access to Information Act and all the exceptions contained therein are creating a culture of secrecy that will persist and be difficult to change, estimates those who act as an intermediary for users of this law.
It's definitely frustrating […] I realize it [la transparence] is not a priority.
No matter which political party is in power, they will want to protect their information, notes Ms. Maynard. It's a part […] the DNA of the government.
A new power ignored
Since changes to the law in 2019, the Commissioner has sent 439 enforceable orders to departments and agencies refusing to disclose information. These regulations are becoming more and more numerous. In the 2022-2023 fiscal year there were 157. Since April 1, 2023, 252 prescriptions have been issued.
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Nothing in the Act permits the Information Commissioner of Canada to compel an institution to comply with its enforceable orders. (archive photo)
Photo: Radio-Canada / Ivanoh Demers
However, the law does not allow the commissioner to force an institution to respect it and there is no mechanism to monitor it.
There are institutions that ignore the orders, regrets Ms. Maynard.
Number of enforceable orders per institution
| Most attacked institutions | Number of enforceable orders |
|---|---|
| Library and Archives Canada | 94 |
| National security | 51 |
| Privy Council Office | 33 |
| Transport Canada | 27 |
| Canada Revenue Agency (CRA) | 20 |
Source: Office of the Information Commissioner of Canada
If someone complains about non-compliance with an order, the commissioner can still go to federal court. This is unfortunate because it is a process that could have already been included in the law, says the Commissioner, using the example of the reform of the Official Languages Act.
The government told us that this was not necessary, “the institutions will respect your orders”. [mais] That's not entirely true, says Caroline Maynard.
The Commissioner fears that this will be a new approach for institutions that want additional time to avoid disclosing information.
A political game
For the New Democratic Party of Canada, the command power is mostly cosmetic and allows the Liberals to say they have fulfilled a campaign promise.
have the power to order […] If there are no sanctions, no monitoring, no consequences, it is practically a recommendation power, argues deputy chief Alexandre Boulerice.
It's as if the Liberals only did half the job.
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Alexandre Boulerice, deputy leader of the New Democratic Party of Canada (archive photo)
Photo: Radio-Canada / Martin Ouellet
Democracy Watch co-founder Duff Conacher even goes so far as to say that liberals don't really want enforcement measures to be effective.
The Liberals played the game that many governments across the country have been playing for decades […]which consists of making a small change here and there, but never really making the system effective, explains Mr. Conacher.
Some loopholes may be closed, but enforcement will not be strengthened.
He argues that therefore it doesn't really matter because government officials could continue to refuse to release information because they knew they wouldn't face sanctions.
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The co-founder of the organization Democracy Watch, Duff Conacher (archive photo)
Photo: Radio-Canada
Towards a sanctions system?
In its recent report on this issue, the Standing Committee on Access to Information recommends that the Information Commissioner may impose fines or penalties.
Bloc MP and vice-president of the parliamentary committee, René Villemure, insists that the commissioner must have the means to carry out her actions and as long as she does not have them, high costs will be incurred. [pour les contribuables] because the institutions ignore or challenge the orders.
Without the power of compulsion, […] it's not worth much.
Mr. Villemure also wants an end to what he calls preemptive editing. According to him, this would facilitate access to information, reduce processing times for access requests and increase citizens' trust in institutions.
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René Villemure, Federal Member of Parliament for Trois-Rivières (archive photo)
Photo: Radio-Canada / Raphaël Tremblay
For her part, Commissioner Caroline Maynard believes compliance with the law should be part of the performance objectives of managers, directors and deputy ministers. She adds that the Prime Minister's Office, ministerial offices and organizations – whether private or not – that work for the government should also be subject to the law as they also spend public money.
In 2015, the Liberals promised in their election manifesto that the law would apply to ministerial positions, including prime minister, as well as public bodies that support parliament and the courts.
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Anita Anand, President of the Treasury Board (archive photo)
Photo: The Canadian Press / Spencer Colby
Without specifying whether she is considering reopening the Access to Information Act, Treasury President Anita Anand acknowledged there is still work to be done. She says the next review of the law in 2025 will give the government the opportunity to further consider ways to improve the law […]including review of recommendations made [par le comité parlementaire].
Despite impending cuts to the federal government, Canada's Information Commissioner's Office is requesting an additional $6 million over three years to complete the processing of complaints received.