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In a democratic society, information is crucial to the proper functioning of government. There can be no true accountability of the government to the people without adequate information about what our government is doing, how its decisions are reached, and the actions that it takes in our name. Freedom of information is also important to facilitate other fundamental rights and freedoms, including freedom of thought, opinion, belief and expression. While we may entrust the making of important decisions to the judgment of our elected representatives, we need information to properly understand how those judgments are reached.
CCLA believes freedom of information is a fundamental right and that it is also an essential part of the exercise of many other core rights and freedoms. While Canada has laws in place to facilitate access to information at both the federal and provincial/territorial levels, these laws are often subject to significant exceptions and the process for obtaining information that the government has refused to provide can be costly, time-consuming and frustrating. CCLA is concerned about the delays and costs associated with our access to information system and believes that the presumption of openness and transparency that was the basis for enacting these laws is being seriously undermined. We also believe that Canada is falling behind internationally as open government movements have popped up in many countries with governments increasingly being more proactive about disclosing information to the public. |
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Freedom of Information
By sheetal on April 4, 2012
CCLA recently received a response from the Fredericton Chief of Police to its Request for Information under New Brunswick’s Right to Information and Protection of Privacy Act. Following the arrest earlier this year of a Fredericton blogger in connection to comments he had made on his blog about a city police officer, CCLA wrote to Police Chief Barry MacKnight to express its concerns regarding the use of Criminal Code defamation provisions, and to ask for information about the use of these provisions in the jurisdiction. CCLA sought information on the number of criminal libel investigations the Fredericton Police Force had undertaken, as well as the number of charges and the disposition of those charges. Chief MacKnight has reported that since 1988, there have been 12 complaints to the Fredericton Police Force under the Criminal Code criminal libel provisions; 4 occured between 1988 and 2006, and 8 occured between 2007 and 2012. Of the 12 complaints, 10 were concluded without charges, and 2 cases remain under investigation. Read Chief MacKnight’s letter here. Read more about CCLA’s response to this case here.
By sheetal on March 21, 2012
The Fredericton Police Chief recently sent word to the CCLA that he intends to fulfill its Request for Information with respect to criminal defamation investigations in the jurisdiction. On February 29th, 2012, following the arrest of blogger Charles LeBlanc under criminal defamation provisions, CCLA sent the Police Chief a formal Request for Information under New Brunswick’s Right to Information and Protection of Privacy Act. CCLA asked for information on the number of criminal defamation investigations the Fredericton Police Force has undertaken in the last five years, as well as the number of criminal defamation charges it has laid and the disposition of those charges. The Police Chief’s office confirmed receipt of the faxed request on March 1, 2012. On March 7, 2012, CCLA received notice from the Police Chief that data is currently being gathered in view of responding to the formal request. CCLA expects to receive a response within the required 30 days.
By sheetal on March 7, 2012
In January, 2012, Fredericton blogger Charles LeBlanc was arrested in connection to comments he had posted on his blog about a city police officer. CCLA sent a letter on February 1st seeking information from Fredericton Police Chief Barry MacKnight on the details of the arrest, as well as expressing its concerns regarding the use of Criminal Code defamation provisions (one of which has been found unconstitutional in multiple Canadian jurisdictions), and the potential chilling effect it might have on free expression. On February 29th, having not yet received Chief MacKnight’s reply, CCLA followed-up with a letter and a formal Request for Information under the New Brunswick Right to Information and Protection of Privacy Act in order to obtain information on the number of criminal libel investigations the Fredericton Police Force has undertaken, as well as the number of charges and the disposition of those charges. In his February 21st reply to CCLA’s first letter, Chief MacKnight has refused to answer the questions CCLA posed regarding the arrest of Mr. LeBlanc and criminal libel investigations more generally, citing their relation to an ongoing criminal investigation as preventing him from responding. CCLA will pursue its Access to Information demand and continue to demand that charges of criminal libel not be laid. Read Police Chief MacKnight’s response to CCLA’s first letter here.
By Abby Deshman on February 27, 2012
Recently a series of reports have surfaced raising allegations of voter-suppression tactics being used leading up to the May 2011 federal election. These include automated “robocalls,” as well as non-automated calls from call centres that provided voters with erroneous information about the location of polls, among other things. The right to vote is a fundamental democratic right, protected in the Charter. The provisions in the Elections Act that restrict misleading and obstructive behaviour with regard to the electoral process are designed to ensure that this fundamental democratic right is not tampered with and that all voters are able to exercise their constitutionally-guaranteed democratic rights in a free and meaningful way. CCLA echoes the call for further investigation into these acts to ensure that the rights of voters are protected and defended in the face of allegations of egregious abuse. To read about CCLA’s recent intervention in a voting rights election case in Newfoundland click here.
By Cara Zwibel on February 15, 2012
The CCLA has been granted leave to intervene in the case of Mitchell v. Jackman in the Supreme Court of Newfoundland and Labrador. While the case involves a challenge to the election results in a particular Newfoundland riding, CCLA’s interest in the case is related to the constitutionality of the special ballot provisions in Newfoundland’s Elections Act. These ballot provisions are designed to facilitate voting for people who will not be available on voting day or on the days when advance polls are open, and this is an important and laudable objective. However, they create an odd situation where voters can cast ballots before the election has actually been called. During this period candidates cannot be nominated, they cannot campaign, and fundraising and advertising restrictions that exist during the campaign period have not yet kicked in. This means that voters will not know who their candidates are and will be denied the opportunity to make an informed choice and meaningfully participate in the election. The right to vote is a fundmanetal right protected by the Canadian Charter of Rights and Freedoms. It includes not only the right to cast a ballot, but the right to participate meaningfully in the electoral process. CCLA will be making submissions to defend the rights of voters and ensure that this important right is given robust protection. A civil liberties group intervenes in the Burin election challenge (CBC, February 15, 2012)
By Cara Zwibel on December 7, 2011
The CCLA is concerned that all citizens and residents have access to basic information about their City and government offices. CCLA has written to Toronto Mayor Rob Ford expressing concerns about his office’s apparent refusal to send briefings, notifications and press releases to the Toronto Star. As an elected official, Mayor Ford has a duty to his constituents to ensure they receive information about the workings of his office. Access to information is crucial if residents are to take an active part in their democracy and newspapers are a primary source of information for many residents. Notwithstanding Mayor Ford’s dispute with the Star about a story published during his campaign, transparency and accountability should be paramount concerns and take precedence over any disputes with a particular news group.
By Communications on July 5, 2011
This op-ed was originally published on July 1, 2011 on Canada.com The federal government’s ongoing attempts to shield documents relating to Canada’s actions in the transfer of Afghan detainees are deeply disturbing. As much as we may look forward to the day when the controversy is over and the case closed, sweeping this issue under the rug does our country and our fundamental values serious disservice. If we believe true democracy demands a transparent government committed to human rights, then we must continue to demand answers. Canada’s role in transferring human beings to the risk of torture is a serious question. What did Canada know prior to the transfers? What did Canada know after the transfers? And at every step, what did Canada do? International law imposes strict legal obligations upon states regarding the absolute prohibition against torture. A transferring state (i.e. Canada) must ensure the receiving power (i.e. Afghan National Directorate of Security) will uphold the 1949 Geneva Conventions and treat detainees humanely. Following a transfer, the transferring state must monitor the conditions in which detainees are kept, and if torture is suspected or identified, must take immediate actions to stop the torture or seek the return of the tortured detainees. Did Canada take these steps? A failure to take these steps can lead to ‘grave breaches’ of the Geneva Conventions. It is not surprising the Prosecutor of the International Criminal Court has commented that if Canada does not take action, he will. Are we as a country really unwilling or incapable of thoroughly and transparently investigating whether our actions resulted in the torture of human beings? The 1984 UN Convention Against Torture, which Canada ratified a long time ago, requires states to promptly and impartially investigate allegations of torture, where there is reasonable suspicion torture may have occurred in territories under its jurisdiction. This “jurisdiction” includes the transfer of individuals from Canada’s `effective control’ to another actor. Are we as a country really going to ignore these binding legal obligations? It is worth remembering the underlying purposes of these obligations are to respect human dignity, and to ensure our society does not condone or be a party to torture. A loose attitude toward torture is incompatible with a free and democratic society, and incompatible with international justice, peace and security. In releasing recently a large volume of Afghan detainee documents, the federal government asserted they showed conclusively Canada has acted properly and declared the Afghan detainee controversy “over”. If you haven’t been paying attention to this issue over the last four or five years, you may be inclined to believe this line. You may not know the government has waged a relentless legal battle to avoid disclosing these documents to the Military Police Complaints Commission, or that it prorogued Parliament to avoid disclosing documents to duly elected MPs. You may have forgotten the Speaker had to compel the government to work with parliamentarians to find a solution to facilitate disclosure, and it was only at his urging that a novel ad hoc committee, along with a panel of arbiters, was formed to address the sensitive document issues. Finally, in all of the government fanfare around the “end” of the process you may not have noticed there are still thousands of documents that haven’t been disclosed (indeed, estimates are the released documents make up only about 10 per cent of the total), and some have not even been independently reviewed. In other words, there are some documents that have only ever been seen by those inside government, and, if the government gets its way, will never be subjected to independent scrutiny. For the government to assert they have been exonerated and the matter is now concluded is an affront to the principle of open government. We cannot accept this kind of stonewalling from our government. Nor can we accept the argument national security concerns will always trump democratic values like transparency and accountability, and that the government (i.e. the executive) is the sole arbiter of what is and is not harmful to national security. If we do, what are we protecting? International law has repeatedly affirmed that national security and the threat of terrorism or war is never an excuse to justify torture. There is no justification for torture, or for failing to investigate serious allegations of torture. We need to recognize that protecting our national security includes protecting the values that we hold dear – values that categorically ban torture, and that include an open and accountable government that is responsible to Parliament and the people of Canada. Canada has a real opportunity here to demonstrate, on the international stage, commitment to its legal obligations to protect human dignity and ensure accountability in a truly free and democratic society. Keeping these documents in secrecy not only sets a dangerous precedent in terms of the transparency of our government, it smacks of impunity and contravenes Canada’s legal duty to properly investigate allegations of torture – a duty these documents may help fulfill. We need to establish an independent process that would allow for the thorough review of these documents, perhaps through the use of something akin to the special advocates that already exist for other national security-related matters. If we can’t or won’t force our government to be straight with us on this issue, we should not be surprised if the international community chooses to take action. Sukanya Pillay is the director of the Canadian Civil Liberties Association’s National Security Program Cara Faith Zwibel is the director of the Canadian Civil Liberties Association’s Fundamental Freedoms Program
By Communications on June 9, 2011
By Cara Zwibel on May 13, 2011
The Supreme Court of Canada released its decision in four appeals which consider the scope of the federal Access to Information Act. The CCLA is disappointed that the Court unanimously found that Minister’s offices, including the Office of the Prime Minister, are not considered “government institutions” under the Act. This ruling means that many of the decisions and daily operations of those at the highest levels of our government will be shielded from public scrutiny. In its intervention before the Supreme Court in this case, CCLA argued that the Access to Information Act is legislation of a quasi-constitutional nature and that it should be interpreted in a way that is most in keeping with its primary purpose – facilitating Canadians’ rights to access information about the workings of their government. The cases (Information Commissioner of Canada v. Prime Minister of Canada; Information Commissioner of Canada v. Minister of Transport Canada; Information Commissioner of Canada v. Minister of National Defence; and Information Commissioner of Canada v. Commissioner of the RCMP) arose when requests were made for certain documents from the offices of the Prime Minister and some other Ministers. The records requested are primarly agendas, notes and emails relating to these offices. The Supreme Court found that the meaning of “government institution” under the Act did not include ministerial offices and that to expand the scope of the Act in this way was an issue for Parliament and not the courts. CCLA urges the government to take active steps to revitalize Canada’s access to information regime and to begin proactive disclosure of information wherever possible. Read the CCLA’s factum in the case here.
By Cara Zwibel on May 2, 2011
The CCLA is concerned about a proposed amendment to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) which could substantially undermine the goal of ensuring transparency and accountability in public healthcare institutions. Ontario’s hospitals have traditionally been excluded from the province’s access to information laws, but under amendments brought in late in 2010, hospitals are to be considered “institutions” under FIPPA starting in January of 2012. Specific quality of care information is already excluded from the access regime, but the government has recently introduced an amendment that could exempt a much broader category of information from disclosure under the Act. The language of the amendment is so broad that it could render much important information about the quality of patient care unavailable to the public. Access to information about our public institutions is crucial in ensuring that those institutions are held accountable in a democratic system. The CCLA recognizes that there are instances where information cannot or should not be disclosed, but these must be the exception, and not the rule. Amendments to FIPPA to exclude disclosure of information should always be drafted carefully in order not to overreach and undermine the necessity of information being readily provided to the public. In CCLA’s view, amendments to FIPPA should be drawn much more narrowly than the current proposals. In addition, the CCLA notes that the proposed amendment to FIPPA is contained in a Schedule to a budget bill and that there has not been sufficient consultation on the proposed change. Given that this amendment could substantially impact on the transparency and accountability of many public institutions, broader public consultation with a variety of stakeholders must be undertaken. |
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