Rubin: While the Charter lets us dream, the Access to Information Act is a nightmare

Tend to agree, given my much more limited experience from outside government. Of course while in government, I dreaded the extensive vetting I had to do for some files:

Two pieces of once-promising Canadian legislation have turned out very differently 40 years on. One is Canada’s Charter of Rights and Freedoms, enacted on April 17, 1982, and the other is Canada’s Access to Information Act, given royal assent on July 7, 1982.

Both claimed to advance and protect individuals from the state’s excesses; one by placing Canadians’ rights in a Supreme Court-guided constitutional framework, and the other a government-controlled law claiming to give Canadians new access to government records –while in reality gatekeeping what Canadians are allowed to know.

Both acts were born under Pierre Trudeau’s Liberal government, one through his leadership and legal beliefs (the Charter); the other (the Access Act) was delegated to his finance minister Mitchell Sharp, secretary of state Francis Fox, and their senior mandarins. These public officials disliked access-to-information legislation (ignoring the public’s demand for it) but needed a legal secrecy code to protect against the growing government leaks.

As part of the access-to-information lobby group, ACCESS, I remember that debate well.

The senior mandarins were the real winners and birth fathers of restrictive public access to government records. An earlier attempt at an Access Act by the Joe Clark government bore their imprint.

The Access to Information Act allowed bureaucrats to run the show. Public officials and corporations gained special privileges and consultation rights, allowing little leeway for the public to gain a glimpse into Ottawa’s information holdings.

Corporations successfully lobbied for special rights to object and to prevent the release of commercial data held by government.

The provinces also had a hand in drafting the secrecy provision in intergovernmental relations affecting them, making those records mandatorily exempt. They agreed with federal authorities that the vast number of federal-provincial agreements and meeting records were outside coverage of any access acts. In 40 years, it has never been suggested that all jurisdictions should agree to regularly work together to adopt more progressive disclosure terms.

Other special interest groups also gained rights. Lawyers were increasingly granted special secrecy for a range of solicitor-client privileges. Crown corporations, both federally and provincially, negotiated more favourable and broader exemption terms. Law enforcement and security agencies, especially after Sept. 11, 2001, successfully pushed for more secrecy.

And at every turn, bureaucrats broadened their policy advice protection terms. They successfully lobbied for excluding immediate release of draft or final unpublished internal government audit reports, thus diminishing the role of their internal watchdogs.

This in contrast to the Charter of Rights and Freedoms, where law enforcement agencies were not given freer rein, bureaucrat and PMO plans received no free passes, lawyers had to make public cases of their arguments, and Crown corporations–even Parliament—could not expect special privileges without a challenge.

Judges blossom under Charter, rubber-stamp under Access Act

The Charter let the courts blossom with progressive purpose interpretations and few disappointments. But on the Access Act side, the courts have mainly sided with the secrecy claims of governments and corporations to the public’s disadvantage.

Just look at the Newfoundland and Labrador Supreme Court which recently ruled the province’s information commissioner has no business in reviewing solicitor-client numerous cases of secrecy (the Newfoundland commissioner is appealing the ruling). Or look at how the Supreme Court of Canada (John Doe v Ontario (Finance), 2014) approved Ontario and other jurisdictions’ application of broader policy advice exceptions. This ruling emboldened provinces like Quebec and British Columbia to amend their Freedom of Information Acts and bring in wider policy advice exemption terms.

Further, in access cases, the courts are unable to review cabinet records or in-camera hearing secret evidence. Even in matters like ministerial mandate letters which Prime Minister Justin Trudeau has released for his cabinet, but Ontario Premier Doug Ford wants his kept secret, the courts’ hands are tied. While the Supreme Court recently gave challengers leave to appeal, it is unlikely it will go against the lower courts and buck cabinet confidentiality to order the release of Ford’s mandate letters.

Judges may be seen as too powerful under the Charter, though they mainly take their decisions from precedents, society and from the hope and purpose that the Charter offers. Judges in Access cases have bleak precedents, little leeway and may not even get to see the most key records hived off as cabinet or security-enabled secrets.

What’s also possible in Canadian Access acts aided by the provincial legislatures is the ability of a growing number of laws passed that override access laws. One such act concerns the Canada Infrastructure Bank, whose operations are largely secret.

Passed in 2019, Bill C-58, an Act to amend the Access to Information Act and the Privacy Act, neatly hived off whole realms of public information, like records in the PMO, from ever publicly surfacing.

In the early days, the media greeted access legislation as a wonderful tool, giving Canadians legal access to public records. It did not take long, especially once more journalists began using access legislation, to realize that these access laws really did not stand for public disclosures. People like me tried to warn the media that access laws were primarily secrecy laws. Back in September 1975, before joining ACCESS, I presented a brief to the Joint Committee for the Scrutiny of Regulations on the federal government’s excessive secrecy. Even then, I realized that legalizing public access to government records would mean officials creating laws very similar to Canada’s vaguely-worded Official Secrets Act.

Over 500 ways to say ‘no’

The dark aspects of the Charter’s notwithstanding clause have rarely come to the forefront, whereas the over 500 ways of saying “no” under access legislation are a daily occurrence. The tools of review under access legislation are kept weak. Access users are considered wards of the state rarely given access to government records. Whereas a litigant under the Charter can use it to challenge prevailing laws and gain greater rights.

The Charter provides a place for sorting out issues that top-down government officials alone cannot handle. Access laws are the exact opposite—they’re an exercise in executive-style government predominating, with only some rights to independent review of record denials.

While the Charter has not brought about, for instance, all Indigenous rights and recognition changes needed, it tries. Canada’s access laws hardly try to allow the public, including Indigenous people, real legislated access or rights. Bureaucrats are in control and do not want access laws being extensively used, even if it is for access to historic data on land claims.

Access laws stifle Canadians’ right to information. Bureaucrats’ daily subversion of public access largely goes on without being penalized and no one effectively challenges their failure to record much government activities.

The Charter is more welcoming and well-regarded. It lets you dream, fight and win better rights that can effect everyday living. In contrast, Access laws only speak of reasonable secrecy and limited service to assist, knowing full well that the public becomes the loser, the state the clear winner.

Rarely have I, in court actions, referred to the Charter. In one case, though, I cited the Charter’s Sec. 15 equality provision in an unsuccessful challenge for gaining equal costs as a lay litigant (Rubin v. Canada (Attorney General), 1990). In another case, in Ontario, I was successful in citing the Charter’s Sec. 2 (b) guarantee of freedom of expression provision in an action that sought to have my filing FOI requests declared as libellous and subject to damages because the commercial party did not like my seeking under municipal FOI his government contracts (Sept. 20, 2019, Ontario Superior Court court ruling, CV-18-595693)).

The Charter protects my right of access to the courts. Most access laws now allow exclusion of users whom they and the information commissioner consider as abusive, frivolous, too-frequent users or as putting in requests in bad faith.

The Charter, in the courts, has been used to challenge governments’ day-to-day controls and has in judgments developed a living doctrine approach to grow and protect individual rights. In contrast, it is government information management directives that limit access, giving marching orders to government agencies to delay, delete and uphold secrecy.

The Treasury Board’s federal directives, for instance, offer dry defensive language designed to say “no” and prevent public employees from serving the public, properly documenting their actions. Daily, I have to contend with getting small morsels of information about the behind-the-scene efforts of hundreds of agencies, third parties and governments.

I would like to see access laws given a constitutional underpinning, an enshrined purpose which would help put Canada on the path to much greater disclosures. Access to information would become a full-fledged public right and a common tool of free expression and inquiry.

While the Access to Information Act and Charter of Rights and Freedoms were born from the same parent a few months apart, they have not acted together as one co-operative friendly force. Forty years have passed and even greater gulfs growing between the two acts.

The Canadian Charter garners international respect as a model to adopt; the Access to Information Act ranks dismally low as a model to avoid.

It’s time to put the two acts on the same page so that Canadians’ rights to know can no longer be ignored, trampled on or based on the state controlling what Canadians get or not get disclosed.

Ken Rubin has followed both the Access to Information Act’s rough 40 years and the Charter’s 40-year evolution. He can be reached at kenrubin.ca

Source: Rubin: While the Charter lets us dream, the Access to Information Act is a nightmare