11/14/2011 01:01 EST | Updated 01/14/2012 05:12 EST

CBC Access To Information Battle: Broadcaster Turns Over Some Documents Under Protest


OTTAWA - The CBC has given a Commons committee some of the documents it has been seeking, but the broadcaster did so under protest Monday.

CBC president Hubert Lacroix said the broadcaster is complying with an order from the access-to-information committee, even though he contends the order may be unconstitutional.

Some of the documents are sealed, however, and the CBC has asked MPs to read a legal opinion the corporation has obtained before opening the material.

In a letter sent to the committee, Lacroix says the documents relate to an access request from Quebecor Media.

An unsealed envelope contains papers Lacroix says won't compromise CBC's journalistic independence, while he says the sealed documents could affect the CBC's ability to carry out its business.

"Our hope is that members of the committee will reconsider their request to review these documents after reading the attached legal opinion," the letter states.

"We cannot overstate the importance of protecting the confidentiality of this information, or the negative consequences that would result if it were made public."

The corporation wants the committee to seek a ruling from the Speaker of the House of Commons on whether the envelope should be unsealed.

Parliament's top lawyer has said Conservative MPs could be violating the Constitution by forcing the CBC to turn over documents it says are protected under privacy law.

Writing in response to legal questions from the NDP, parliamentary law clerk and counsel Rob Walsh said in a letter released Sunday the issue could end up in the courts, where he said the Tories are likely to fail.

Walsh said the bid to peek at the CBC's internal files clearly conflicts with a case now before the Federal Court of Appeal which pits the CBC against the information commissioner.

Walsh said the committee might study the documents behind closed doors, but even then he fears a leak could compromise CBC's privacy rights and undermine the ongoing legal case.

He said nothing short of the courts' credibility and independence is at stake.

The matter, he warned, could well end up before a judge, where it is not likely to turn out well for those seeking the release.

"I feel that the ... principle of the separation of powers ... is sufficiently important in constitutional terms that a court might see the merits of the argument and rule against the House," he wrote.

"In my view, respect for the constitutional framework of our parliamentary system of government is part of the rule of law which is the over-riding legal principle that makes a democratic system of government such as ours workable and credible."

The motion by Tory Dean Del Mastro involves records the CBC has provided to Quebecor media outlets and others, as well as records it has held back.

The public broadcaster redacted or withheld certain documents citing its exemption under the Access to Information Act for journalistic, creative and programming activity.

Also at play is the Broadcasting Act, which enshrines the CBC's independence by barring cabinet ministers from accessing its journalistic, creative and programming information.

The bottom line for the CBC/Radio Canada, says Lacroix, has little to do with the actual information being sought but rather with principles of journalistic freedom and the public broadcaster's ability to compete with private industry.

"This is, for us, about the critically important concept of independence from political influence and our ability to act — as we have always done as a public broadcaster — within a competitive broadcasting ecosystem," Lacroix said Monday in a speech to the National Press Club.

The committee has been studying the CBC's legal battle with the information commissioner over who gets to review the documents it has decided to block.

NDP members on the committee balked at Del Mastro's Oct. 27 motion. Opposition MPs boycotted the subsequent vote and New Democrat Charlie Angus asked Walsh for a legal opinion.

The CBC has argued that only a judge should be able to look at the records, and Walsh agreed.

"In my view, such initiatives are not within the constitutional functions of the House or, by extension, its committees and the use of the House's powers to demand the production of documents for such purposes could be found to be invalid and unenforceable at law."

The committee should hold off any review of the CBC files until the court proceedings have ended, he said.

Del Mastro has said there is no indication any of the access requests dealt with journalistic activities.

The Commons was seized with similar issues of parliamentary privilege last year, when the opposition demanded the government produce top-secret documents on the Afghan mission and detainees.

The Speaker of the House ultimately ruled Parliament has an inviolable right to demand documents, and ordered the Commons to find a resolution. A special committee of MPs was struck to view the files.

But the detainee file touched on national security, not constitutional protections such as press freedom. Parliament has not had to grapple with parliamentary privilege and Charter rights very often, nor have the courts.