Photographs by Olaf Blecker

A Love Affair with Secrecy

The Access to Information Act was supposed to get government documents into the hands of Canadians. Instead, it has created a state in which there are often no documents to get.

by David Berlin

Photographs by Olaf Blecker

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The Liberal government reconvened Parliament this month with the memory of the sponsorship scandal still rankling many Canadians. During the election, Prime Minister Paul Martin staked his party’s reputation on addressing the ethical lapses that occurred under its watch. More ambitiously, he claimed that his government would act decisively to rectify Canada’s “democratic deficit.” “If Martin is serious about democratic renewal and willing to extend his agenda beyond parliamentary reform,” wrote Tom Axworthy, chairman of the Centre for the Study of Democracy at Queen’s University, “he might be promoting the most galvanizing political idea since Pierre Trudeau’s advocacy of a ‘just society.’”

For a start, Martin could heed the words of Auditor General Sheila Fraser. In her testimony to the judicial inquiry into the sponsorship scandal in September, Fraser stated, “The sponsorship program was never mentioned in a departmental report until the year 2001.” This, for a project that had operated out of the public works department since 1997. Without proper documentation, Fraser insisted, auditors are hamstrung and Parliament cannot hold government to account.

Remarkably, Canada has no legislation that deals explicitly and comprehensively with the creation and maintenance of government records. To enact such legislation would substantially improve accountability and help put real teeth into our Access to Information Act. As it stands, the rhetoric of transparency has no grounding; ministerial directives and guidelines on record keeping and information management can be so easily circumvented that politicians and civil servants who prefer to have their names, points of view, and decisions kept off the record routinely do so.

Federal Information Commissioner John Reid is the ombudsman responsible for investigating complaints from people who have been denied access to government information. He has the weighty responsibility of seeing to it that Canadians have an open window on their government. Reid is now six years into a frustrating seven-year term that has given him plenty of time to ponder the smudges on that window.

This spring, Reid made his way to York University’s campus in north Toronto to speak at a conference convened by the Ginger Group, a gathering of liberals seeking to open up democratic processes within government. Reid was invited to lecture on the sponsorship scandal which continued to dominate headlines, but his opening remarks made it clear that he was less interested in the scandal’s details than in its structural underpinnings.

“The [Access] Act has now been in operation for almost twenty-one years and, despite its many successes . . . governments and bureaucrats have still managed to find ingenious ways to wiggle and squirm to avoid the full operation of the law,” Reid said. “The hrdc grants mess . . . the gun registry fiasco, the ongoing sponsorship scandal . . . have been allowed to occur and fester at least in part due to a lack of adequate record keeping and timely public disclosure.”

Had Reid given the speech a few months later, he might have added Canada Post to his blacklist. Auditor General Fraser alleged that the president of Canada Post, André Ouellet, had spent two million dollars in unrecorded expenses. “This was an honour system,” Ouellet wrote in a letter released to the media. “People were trusted. This was exactly the same system used at the time for ministers.”

The current state of affairs began taking shape in 1983, when the Access Act first came into force. Before that, it would not have been unusual to find memos in which deputy ministers pointed out the many mistakes in their bosses’ policy initiatives. An interdepartmental memo from a deputy to his ministerial master was often a beautiful thing, running to dozens of pages of well-articulated analysis and criticism. Details were sometimes so lush that a reader’s knees buckled. In one incident, an exasperated Lester Pearson, then a senior official at External Affairs, fired off a note to his deputy minister demanding to know how he could advise the prime minister on vital affairs of state if he was forced to “spend two hours each day talking about the cost of Désy’s table linen or the salary of the newest stenographer.”

By the time the federal government finally introduced the current Access law, it was well behind the curve for Western democracies. France, Denmark, Finland, and the Netherlands already had such laws in place, and Sweden, the grandfather of such progressive innovations, has had access laws on its books since 1766. By 1982, twelve countries, including the U.S. (1966), had enacted modern legislation.

Even so, in the backrooms of Parliament Hill, whisperers claimed that passage of the Access Act had little to do with pulling Canadian democracy up by its bootstraps and even less to do with transparency. Instead, Ottawa insiders contended that the notoriously private Prime Minister Trudeau had finally put the Access Act into force only to undermine his Progressive Conservative successor. Trudeau’s “gift” to Brian Mulroney threatened to rend government secrecy from its age-old moorings.

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