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Three Ways Trudeau’s Liberals Have Let Down Open Government Advocates

New laws fall short of what’s needed on transparency and civil rights, critics say.

By Jeremy J. Nuttall 23 Jun 2017 |

Jeremy J. Nuttall is The Tyee’s reader-funded Parliament Hill reporter in Ottawa. Find his previous stories here.

Remember the Harper government’s Bill C-51? Introduced in January 2015, it was meant to bolster the powers of Canada’s security agencies to prevent terrorist activity and unveiled with an Orwellian media lockup.

Critics warned the bill’s Orwellian provisions would jeopardize Canadian’ rights and chill freedom of expression.

The Trudeau government, elected in October 2015, promised to address some of the bill’s flaws.

But this week’s long-anticipated rollout of legislation on both national security and access to information has sparked complaints that the Liberal government has failed to deliver on promises of greater government transparency and civil rights protection.

And the criticism comes as controversy continues to surround the Liberals’ “pay for access” fundraising dinners, despite promised changes to increase transparency around such events.

The promise of “real change” on transparency, open governments and civil rights is looking shaky, critics say.

1. Still work to do on fixing Bill C-51

In 2015, civil rights advocates sounded the alarm when the Conservative government introduced Bill C-51, the Anti-Terrorism Act.

Among other provisions, Bill C-51 made promoting terrorism online against the law, lowered standards for preventive arrests and expanded the powers of the Canadian Security Intelligence Service.

Canada’s privacy commissioner slammed the bill shortly after its release, and others warned much of it was too vague and open to abuse by authorities.

At the time, only the New Democrats opposed the legislation. The Liberals promised tweaks if elected.

Those tweaks came earlier this week in the form of Bill C-59.

The bill includes the creation of a stronger oversight body, a so-called super watchdog, to keep an eye on Canada’s security agencies. Thresholds for preventive detention were also raised.

But civil rights advocates still insist many aspects of the new legislation aren’t justified.

Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group, said while the Liberals made some progress in improving Bill C-51, elements still infringe on Canadians’ rights.

“Our takeaway is basically that they’re putting in a framework and protocol around laws that we don’t think should be there in the first place,” he said. “There was no justification from the start as to why those powers were needed.”

McSorley said the new bill also seems to give security agencies the ability to legally collect and keep metadata on the public, even if it’s collected by accident and isn’t related to an investigation.

He said though the changes tighten up government agencies’ ability to share Canadians’ information, it’s still problematic.

“When Canadians give information to a certain agency, they expect it to stay with that agency,” he said. “They don’t expect it to be transferred from one to another for reasons that were never made clear to them.”

McSorley speculates the government didn’t simply repeal C-51 because the Liberals don’t want to appear soft on national security issues.

Bill C-22, establishing a National Security and Intelligence Committee, also passed third reading in the Senate this week. The committee, composed of MPs and Senators, would be responsible for parliamentary oversight of national security agencies.

But McSorley said that legislation has fundamental flaws. The Prime Minister’s Office can stop committee investigations and nothing guarantees committee access to all documents during an investigation of Canada’s security agencies.

2. Access to information still problematic

Reporters lately have been receiving heavily redacted documents in response to access to information requests, including one returned late last year with talking points for the media redacted.

This week the government released its planned changes to the Access to Information Act, including giving the information commissioner the power to compel government to release documents.

But governments constantly promise to increase Canadians’ access to information on their decision-making process without following through, says Mount Royal University journalism professor Sean Holman.

Holman said he’s not surprised the government’s proposed changes are minor.

A larger concern, he said, is that the Liberals have added a dangerous element by giving government the ability to increase limits on access.

“Government will now have the power to unilaterally disregard an access to information request if it is vexatious or meets a number of other conditions,” Holman said. “This is a serious issue.”

In essence, he said, the federal government would be able to decide on its own if an information request doesn’t deserve to be answered.

Holman said other provinces and municipalities have similar provisions, but in many of them the government cannot simply decide for itself if a request is vexatious.

Many have to apply to an information commissioner who makes the decision.

Holman said overall the proposed reforms “marginally” improve access to information.

Another concern is that the Prime Minister’s Office and ministers’ offices are still not subject to FOI requests, despite a promise by the Trudeau government to make them subject to the Access to Information Act.

The government also said it would proactively release information, such as expenses, from these offices, and Treasury Board president Scott Brison tried to claim it showed the government made those offices subject to the access to information laws.

“Actually for the first time ever we are applying the access to information act to ministers’ offices,” Brison said during a confrontational TV interview. “What we’re doing is the first major reform of the ATIP act in 34 years.”

But Holman said that though proactive release of information is good, it is not the same as being subject to the Access to Information Act.

“One is the disclosure of certain classes of information,” he said. “The other, an access request, allows individuals to demand information outside those parameters. This is not the same thing.”

3. Open access for media? Not quite

After a series of articles in The Tyee and The Globe and Mail about the Trudeau government’s private fundraisers, where people paid up to $1,500 to attend private parties featuring the prime minister and other ministers, the Liberals assured Canadians things would be different.

Fundraisers would no longer be held in private homes and media would be able to attend. A list of attendees would also be issued 45 days after the event, according to changes announced by the party.

But when media showed up at an Ottawa fundraiser on Monday for members of the Laurier Club, they were told to stay in a pen.

One reporter who left the pen was shadowed by Braeden Caley, senior director of communications for the Liberal Party, according to a story in the Hill Times.

“(Reporters) were told they were not allowed to mingle, but could talk to guests registering and entering the event in the foyer of the museum,” wrote the publication.

In January, The Globe and Mail reported the Liberals were going to change party rules around fundraisers and would discuss the logistics of inviting media to events with the Parliamentary Press Gallery.

Gallery president Tonda MacCharles said two party officials did present a plan to the gallery, but the blueprint didn’t include media in pens.

MacCharles stressed the meeting was not part of any negotiations or attempt at gaining approval from the gallery. She pointed out the parliamentary gallery cannot advocate for journalists across Canada and therefore an open access policy is best.

“We urged as much open access as possible including supplying media the names of who attends any given fundraising event, and ensuring that the speeches were on the record,” she told The Tyee in an email.

“We suggested the Liberal Party should not expect the Gallery to coordinate pooled coverage of party fundraisers — which should be open to all.”

During the final years of Stephen Harper’s government, the Conservatives took flack for keeping reporters in roped off areas and even banning them from some events during the 2015 election campaign.

Asked if reporters would be prevented from speaking to attendees in the future, in an email Caley said the party is “facilitating” media access.

Caley said the Liberals’ policy on open fundraising goes further than other parties.  [Tyee]

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