OTTAWA – There is an easy fix to the ongoing dispute between the Canadian Broadcasting Corp. and the Office of the Information Commissioner of Canada, according to the chair of the CRTC, Konrad von Finckenstein.
In an appearance before the House of Commons Access to Information, Privacy and Ethics Committee, von Finckenstein said Parliament just needs to change the Access to Information Act. The former judge and Competition Bureau chief noted the current dispute hinges on a double exemption contained in section 68.1 of the Act.
This section of the Act says that CBC’s journalistic, programming and creative activities are exempt but also refers to “other than information that relates to its general administration.” The CBC is using the exemption as the reason for refusing to hand over documents to the information commissioner.
“The easiest way to fix it is to establish by legislation that either yes she can look at those documents or no, she can’t,” he said in response to a question from Brad Butt, a Conservative MP from Mississauga-Streetsville.
Von Finckenstein added later during his appearance that removing the last bit about information pertaining to general administration would do the trick. To ensure the information commissioner could exercise her duties, “all you’d have to do is to change that very provision, and say the CBC may claim exemption for journalistic, programming and creative activities…and leave out the last tail, the exception to the exemption,” he explained.
Asked whether he agrees that the information commissioner should be the one making the determination of releasing the documents and not the courts, von Finckenstein replied that that it’s up to Parliamentarians.
“That’s for you as a legislator to decide,” he said to MP Butt. “You can say the Act does not apply, period in which case it doesn’t apply. Or you can say…the Act applies, [but] this information can be withheld provided a, b, c, etc.”
The problem, according to the CRTC chair, is that this section of the Act is poorly written. “Unfortunately, the section in dispute here has been drafted in such a way that you have a double exemption. The Act does not apply except it does apply and this has given rise to the dispute in the interpretation,” von Finckenstein said.
The Federal Court of Canada has already ruled in the favour of the information commissioner, but CBC has appealed the case to the Federal Court of Appeal (FCA). Lawyers for the national public broadcaster were appearing before the FCA today to argue their case.
Quebecor Media CEO Pierre Karl Péladeau, , will appear in front of this very committee on Thursday.
The ATIP Committee will hear from Pierre-Karl Péladeau, president and CEO of Quebecor Media Inc. on Thursday. QMI-owned Sun Media Corp. will also be there with Luc Lavoie, head of development Sun News and Parliamentary bureau, appearing. QMI, which competes mightily for ad dollars in Quebec with CBC and has been demanding to see those CBC documents, has waged a war on CBC through access to information.
