Scrutinizing Government Increasingly Difficult, Say Watchdogs

The Peace Tower rises above the West Block on Parliament Hill in Ottawa, in a file photo. (Sean Kilpatrick/The Canadian Press)

Canadian governments are more talk than action when it comes to transparency and accountability, say some in watchdog organizations.

Duff Conacher of Democracy Watch says he is still waiting for the “open by default” government the Trudeau Liberals promised prior to their election in 2015.

“The Trudeau government usually misleads in their initial response, and then when it’s pointed out that they’re lying to voters, they then come up with lame excuses for delaying action or solving whatever the problem is.

“And then [they] just don’t do anything again until the media highlights, again, that the problem still exists and hasn’t been solved. And that’s the pattern since they were elected in 2015,” Conacher said in an interview.

On Dec. 22, 2021, the Treasury Board released the first interim report on the federal government’s public consultations on its access to information legislation. Conacher says the government’s own report clearly showed that Canadians want a wider body of information made available—and sooner.

“The public, citizen groups, and experts have loudly and clearly called once again, as they have for decades, for key changes to close loopholes in the federal access to information law, and [to] strengthen enforcement,” Conacher said in a statement.

“The federal access to information law is so full of loopholes that it really is just a guide to keeping information secret that the public has a right to know.”

The Treasury Board said in an email that the government has identified a number of “key actions” that it is undertaking to improve access to information (ATI). They include “extending the retention of ATI summary requests on the Open Government Portal beyond 2 years, releasing guidance to federal institutions to streamline the review process prior to proactively publishing materials, and working towards declassification of records.”

“The government has committed to a full and complete review of access to information and will take the necessary time it needs to meet this commitment,” the email said.

‘Politicians Write the Laws for Themselves’

Bill C-58, which was introduced in 2017 and received royal asset in 2019, requires the prime minister to “proactively disclose” ministerial mandate letters and also requires certain information concerning ministers to be published, including briefing materials and travel and hospitality expenses.

However, the government reneged on an election promise to make the offices of the prime minister and cabinet subject to information requests. Worse, the bill created new barriers to accessing information, such as imposing new obligations on people making a request and adding new grounds for institutions to decline to act in response to requests.

“Bill C-58 fails to deliver. … Rather than advancing access to information rights, Bill C-58 would instead result in a regression of existing rights,” then-information commissioner Suzanne Legault said in a 2017 report.

Others complain that the government is too slow in its routine reporting. On Jan. 19, Parliamentary Budget Officer Yves Giroux called for new legislation to require the government’s public accounts to be published no later than Sept. 30 of any given year, instead of Dec. 31.

Conacher says he is more impressed with Giroux than others whose positions purportedly keep government accountable. Democracy Watch launched legal action following the 2017 federal appointments of the ethics commissioner and the commissioner of lobbying, saying the Liberal government had misled opposition parties and the public in the selection process. The Federal Court of Appeal agreed the Trudeau cabinet was biased, but said that was “reasonable.”

“Politicians write the laws for themselves and choose their own watchdogs, ... and they even choose the judges at the federal level who will judge them and judge every provincial government, most particularly liberal judges. So all you can do is hope that embarrassment, pressure from opposition parties and the media and the public, will get the laws changed,” Conacher said.

“But it is a difficult process because the ruling party doesn’t really have much incentive to increase its own accountability. And the opposition parties often want to complain but not really push for systemic change, because they’re hoping to get into power and do the same thing.”

By example, 15 years of Liberal rule ended in Ontario in 2018, but some who helped Doug Ford and the Progressive Conservatives gain power now lobby the government. The Ontario Integrity Commissioner made allowances in 14 such cases, which Democracy Watch has legally challenged.

Fees, Backlogs in BC and Ottawa

Transparency and accountability in governments vary across the provinces. In British Columbia, Christy Clark’s Liberal government suffered a scandal in 2015 after B.C.’s privacy commissioner reported that political government staff had been “triple-deleting” emails to ensure they would not be kept on servers and in backups, thus preventing them from being unearthed in information requests.

Recent amendments introduced by the NDP government don’t satisfy Jason Woywada, executive director of the non-profit BC Freedom of Information and Privacy Association.

“They put in place a duty to document and basically created a ’trust us, we‘ll get it done’ scenario, without any independent oversight or review process. [Nor did they] put in place a civil monetary penalty for someone failing to appropriately document,” Woyada told The Epoch Times.

“They’ve slipped in, created some rollbacks in that they’ve introduced a user fee for FOIs now,” he said of Freedom of Information requests.

“If I request information from the government and they come back with a time estimate that it could take 40 or 50 hours to find, and I have to pay for every hour above 10, is that a reasonable amount of time?”

B.C.’s Ministry of Citizens’ Services said in an email that on top of the amendments to the Freedom of Information and Protection of Privacy Act made in the fall of 2021, more government information continues to be made available to the public through “proactive disclosure directives,” meaning people don’t need to file an FOI request.

As for the user fee, it was intended to bring B.C. in line with other jurisdictions that charge a fee, the email said, but it doesn’t apply to individuals requesting their personal information or to Indigenous Governing Entities.

Woywada says the pandemic has been used as an excuse for slow replies. He says it is also becoming more common for governments to refuse prompt, informal disclosure and instead funnel them through formal FOI requests. This creates more backlog.

“The bureaucracy is expanding to meet the needs of the expanding bureaucracy,” he said.

“It’s getting to the point with some of these requests that you have to leave them as an inheritance for people to pick up because the request for information may indeed exceed your lifespan now.”

In recent weeks, Ottawa researcher Michael Dagg filed a notice of application to the Federal Court after Library and Archives Canada said it would take 80 years to respond to an information request.

That’s “a joke,” Woywada says.

“The trend line is a reduction in trust in public bodies, the trend line is a lack of information being released without a fight.”