History’s lessons on reforming the Access to Information Act in Canada

Why the next federal election may be an opportunity for change

(This is a condensed version of a Zoom presentation I gave on Dec. 14, 2023, at the Government Information Day conference, sponsored by Wilfrid Laurier University, Waterloo, Ont. )

The great Charles Dickens in his 1857 novel Little Dorrit satirized how government bureaucracies serve themselves rather than citizens.

His fictional Circumlocution Office assiduously protected the status quo against those who pressed for change. The office, as he described it, especially supported newly elected governments with no intention of carrying out reforms they had promised in the heat of an election.

In Dickens’ wry words: “It is true that every new premier and every new government, coming in because they had upheld a certain thing as necessary to be done, were no sooner come in than they applied their utmost faculties to discovering How not to do it.”

And so “discovering How not to do it” became a mission statement for the Circumlocution Office. In the land of freedom of information, journalists like myself butt heads every day with the Canadian branch of the Circumlocution Office.

Canada’s Access to Information Act hit its paunchy middle age this past summer, 40 years after coming into force in 1983. The law was crafted in a bygone era, before the dawn of digital communications. Over four decades, there have been persistent attempts to modernize the geriatric law – more than 30 such efforts, by one official count. All have perished scaling the formidable ramparts of the Circumlocution Office.

And yet we do have an Access to Information Act on the books. How did that piece of legislation slip past the sentries? Indeed, there have been modest improvements to the Act over the years. Was the Circumlocution Office asleep at the switch?

In fact there were peculiar circumstances that enabled freedom-of-information legislation in Canada, and that allowed reforms to sneak into law. Understanding these can help identify when the potential for change is ripe.

History tells us that obscure members of Parliament, rather than governments, have been the most tenacious proponents of freedom of information.

The first such law proposed for Canada appeared in a private member’s bill (C-39) in 1965, by former newspaper columnist Barry Mather (1909-1982), a New Democrat. Mather, who represented a British Columbia riding, drew inspiration from the United States. Congress just then was debating the first American freedom-of-information law, which came into force in 1967.

Mather’s bill went nowhere, even as he diligently re-introduced it in every Parliamentary session through to his retirement in 1974. That was the same year the U.S. Congress strengthened its legislation in the aftermath of the Watergate debacle. So America had already overhauled its freedom of information law while Canada was still vacillating about whether even to have one.

Ged Baldwin (1907-1991), a lawyer and Progressive Conservative MP for Alberta’s Peace River riding, took up the cause. Baldwin introduced a private member’s bill in 1974 (C-225), drawing on his close study of the American and Swedish laws. His bill did not pass, though its broad proposals received extensive study in Parliament in the mid-1970s.

It’s noteworthy that Mather and Baldwin were based in the West – two opposition MPs, one a journalist, the other a lawyer, outsiders aligned against the Laurentian elites of central Canada.

Other private member’s bills have tried to dismantle government secrecy.

John Bryden (1943- ) was a journalist with the Hamilton Spectator, the Globe and Mail and the Toronto Star. He encountered the Access to Information Act in the 1980s during research for his first book Deadly Allies, a history of Canada’s role in chemical and biological warfare in the Second World War. His digging was frustrated by the Act, which Bryden said “systemizes secrecy.”

Bryden became a Liberal MP in the party’s 1993 election win, representing a riding just west of Toronto. He remained a backbencher for the next 11 years. During that time, he mounted a personal crusade to reform the Act. In 1994 and 1995, he lobbied the Liberal government for reforms but was stonewalled. He hired a lawyer to help him write a private member’s bill, and tried to get it to second reading several times, without success.

In 2001, Bryden led an all-party, backbench rebellion against the government’s task force on access to information, a group of bureaucrats assembled that year to review the Act. Bryden’s backbenchers claimed the task force had failed to consult the public or parliamentarians. The rebels issued their own report on needed reforms, which was ignored.

Bryden proposed broad reforms in 2003 (C-462), in another iteration of his private member’s bill, still to no avail. Soured by a decade-long rebuff, Bryden quit the Liberals to sit as an independent in 2004, then joined the Conservatives. He lost the Conservative nomination in his riding for the election that year, and returned to private life.

MP Pat Martin, a maverick New Democrat from Winnipeg, resurrected the Bryden bill in the next Parliament, in 2004 (C-201). It died a quick death. He tried again a decade later with another private member’s bill (C-567). That measure also failed. In 2014, Justin Trudeau tabled his own private member’s bill (C-613) months after becoming Liberal party leader. His proposed amendments to the Access to Information Act were significant, but the bill died.

The hard lesson here is that private member’s bills proposing broad reform are doomed at birth. They may raise the profile of freedom of information, or may shame and pressure governments. But ruling parties will always insist on controlling just how secrecy is peeled back – if they allow it to be peeled back at all – because greater transparency diminishes their freedom of action.

So when does government itself ever roll back secrecy?

The Access to Information Act was passed as a Liberal government bill in 1982 – in retrospect, a minor miracle. But it wasn’t the first such government legislation introduced in Parliament.

That milestone is owned by the Progressive Conservative government of Joe Clark. His Bill C-15 in 1979 was a reflection of groundwork by Ged Baldwin. However, the Clark minority government fell over budget measures and its freedom-of-information bill died.

The Clark episode is nevertheless instructive. The breakthrough bill had been introduced by a party emerging from 16 years on the opposition benches. Opposition MPs like Baldwin were only too familiar with the information void nurtured by the ruling Liberals. Clark, an Albertan representing the province’s Yellowhead riding, saw his party as a new broom, sweeping aside tired eastern Liberals.

The Liberals, meanwhile, were themselves exiled for a spell in opposition in 1979, denied the machinery of government for the first time since 1963. Elected to power again in 1980, Pierre Trudeau’s cabinet introduced a bill that became the framework for today’s Access to Information Act.

The Liberals had taken years finally to accede to a sunshine law. Previously, they had lost no opportunity to delay, review, examine and study. So what happened in 1980 that caused Pierre Trudeau to act?

A stint in opposition was humbling to the party. Freshly installed governments emerging from electoral limbo typically display legislative bravado during their first months in power. Pierre Trudeau was also intent on a legacy, witness the repatriation of the Constitution in 1981 and his global peace mission of 1983. These and other factors helped deliver to Canadians what the U.S. republic had given to Americans some sixteen years earlier; that is, a law that shifted power to ordinary citizens, who were now able to compel the production of government records.

Lest we get misty-eyed about the improbable birth of our Access to Information Act, it did come riddled with loopholes and escape clauses. The law quickly became an anachronism in the digital era. The Act today is a museum piece that has lost its purpose, that is, to make government accountable to citizens. Journalists are abandoning it in droves. Academics are being deprived of the raw material of history. NGOs and activists are being shut down with blank pages.

There have been only two substantive government bills drafted to update the current law, in 2006 and 2017. Both were directly tied to the election platforms of opposition parties attempting to regain government, each capitalizing on the view that the incumbent administration had become secretive.

The Sponsorship Scandal became an albatross for the governing Liberals, after auditor general reports and the Gomery commission. The party was tainted with coverup and secrecy. So Conservative Leader Stephen Harper made transparency the centerpiece of his 2006 election platform, promising an aggressive list of reforms to the Access to Information Act.

Winning a minority government, the Conservatives delivered key reforms, notably making CBC, Canada Post, VIA Rail and other Crown corporations subject to the Act. But other promises were broken, such as giving the information commissioner order-making power.

The Harper Conservatives themselves soon acquired a patina of secrecy. They began to choose which journalists could ask questions of the prime minister. They quietly killed an access-to-information registry. The first documented case of political interference in an access request happened on their watch.

The Justin Trudeau Liberals were quick to capitalize on public perceptions of Harper government secrecy. In the 2015 election campaign, Trudeau promised sweeping reforms to the Act. Elected with a majority, the Liberal government delivered some changes (Bill C-58), such as a form of order power for the information commissioner. But they broke a promise to subject ministers’ offices to the Act. And in subsequent years, the Liberals themselves acquired the taint of secrecy, especially in battles to withhold cabinet records from public bodies.

But note that the Stephen Harper and Justin Trudeau administrations tabled major access legislation immediately following a period of exile in opposition, just as did the Joe Clark and Pierre Trudeau governments.

What lessons can we draw from all this history?

As argued earlier, private member’s bills are dead ends. They may set out noble aims and stir discussion, but almost never change the law. Governments are loath to tear down barriers to transparency, with one important exception: opposition parties newly installed as governments do have a track record of action early in their terms.

Canada faces another election by 2025, if not sooner. The past tells us that elections can create wormholes for reform, particularly if an opposition party wins power – which the current polls tell us is ever more likely.

Canadians will decide for themselves what issues they most care about. For those who value transparency, specifically an overhaul of the Access to Information Act, an opportunity is nigh.

How best to exploit it?

Freedom-of-information activists need first to agree on a few key reforms (not dozens, which is a recipe for paralysis). They must press the parties to include them in platforms. And they need to get a commitment for quick implementation, without more useless, time-consuming review. Citizens will want to hold any administration to account, whether or not they cast a ballot for the winner. A stronger, more effective Access to Information Act is in everyone’s interests.

It’s our best antidote to the tyranny of the Circumlocution Office.