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Toby Mendel

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The Human Right That Canadians Are Way Behind On

Posted: 10/14/2012 7:09 am

How fares freedom of expression in Canada? As part of Non-Speak Week, PEN Canada blogs on the health of that most fundamental of freedoms.

A recent global assessment of right to information (or access to information) laws placed Canada 55th out of the 93 countries with RTI laws. It languishes not only behind peer group countries like the United States, the United Kingdom and Australia, but also behind many developing countries. With a score of 79 out of a possible 150, Canada did significantly less well than countries like India and Slovenia (130 points), Mexico (119 points) and South Africa (111 points).

That assessment focused on the legal framework for RTI, but studies on implementation also indicate a weak performance. Newspapers Canada's Seventh Annual National Freedom of Information Audit, which reviews both national and sub-national RTI systems, found weaknesses throughout the system. Its verdict at the national level was damning, stating: "The federal government's performance was again among the worst. Only half of requests were completed within the statutory 30-day deadline."

A study by the Centre for Law and Democracy, Failing to Measure Up: An Analysis of Access to Information Legislation in Canadian Jurisdictions, highlights the many problems with Canada's RTI laws. Far too many bodies fall outside of the ambit of the law, including at the national level, Cabinet, the legislature and the judiciary. There are serious procedural problems in processing requests, inexcusable delays and instances of excessive fees.

In every Canadian jurisdiction, the regime of exceptions is overboard and grants officials too much discretion to refuse access. Problems include illegitimate exceptions as well as class exceptions (i.e. exceptions which do not require a risk of harm before information may be kept secret), weak public interest overrides (so that information is not released even where this is in the overall public interest) and weak overall time limits for exceptions (often set at 20 or 30 years for all or most exceptions).

In many Canadian jurisdictions, the oversight body (the information commissioner) does not have binding order powers (it can only make recommendations, which are often ignored) or any promotional role, which is essential to ensure that Canadians are aware of their rights.

Despite this poor track record, Canadians have demonstrated little enthusiasm for the issue. There is limited media coverage and public debate about RTI, and governments across the country have shown little interest in RTI reform. By contrast, in countries like Bulgaria, India and Mexico, it is the subject of almost daily media reporting and intense public interest. In those countries, citizens use the law far more frequently than Canadians. Estimates suggest that the number of requests in India is over five million annually. Even scaling down for population, that is nearly five times the rate in Canada (of around 35,000 per year) despite our advantage in terms of socio-economic development.

At a practical level, there are several reasons why Canadians should be concerned about our poor RTI performance. RTI laws are a key tool for exposing government wrongdoing and corruption. The exposure of serious corruption in the Quebec sponsorship programme -- which helped to bring down the government -- was based on RTI requests. More recently, RTI requests have exposed a dubious use of search and rescue helicopters by the Minister of Defence, Peter MacKay. Both incidents generated massive media coverage and public debate, but not much support for the RTI rules which made that possible.

The international human rights NGO, Article 19, has described access to information as the "oxygen of democracy," an apt metaphor. Good RTI laws require public authorities to publish information proactively, including information aimed at fostering participation. The media, civil society and others -- such as opposition politicians -- use RTI laws to uncover additional information that is important to citizens wishing to engage with government. Participation at every level, from national elections to school boards, depends on access to information.

Businesses are also a significant RTI user group. Governments hold a great deal of information with commercial value and RTI laws help promote information synergies between businesses and government. Businesses also use RTI laws to help ensure that tender processes work fairly, and to learn how to improve their performance.

Canada's RTI systems do provide these benefits, but robust guarantees would deliver them far more effectively. Time is of the essence in these cases, and yet delays are a real Achilles heel in Canada. Official discretion in applying exceptions is a serious obstacle to using RTI laws to uncover official wrongdoing or incompetence. Such problems would be exposed more often, and earlier, if our RTI laws had more carefully worded regimes of exceptions.

One reason why Canadians do not get excited about the problems with RTI is that they do not view this as a fundamental human right. RTI has been recognized as an internationally protected human right by the UN, and by all three regional human rights systems (in Africa, the Americas and Europe). The Supreme Court of Canada has also found constitutional protection for this right, albeit only to a limited degree.

This does not seem to register with Canadians. If Canada were in 55th place on other human rights issues -- such as women's equality, freedom of expression, discrimination or privacy -- there is little doubt that Canadians would be outraged. Hopefully our values around RTI will start to align more with our values on those other human rights. We might then see some improvement in the way RTI is protected and respected in Canada.

Toby Mendel is the Executive Director of the Centre for Law and Democracy.

 
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