Monday 25 February 1991

Review of Freedom of Information and Protection of Privacy Act, 1987

Ontario Labour Relations Board et al

Ontario Genealogical Society

Canadian Manufacturers' Association

Radio-Television News Directors Association of Canada



Chair: Duignan, Noel (Halton North NDP)

Vice-Chair: MacKinnon, Ellen (Lambton NDP)

Cooper, Mike (Kitchener-Wilmot NDP)

Frankford, Robert (Scarborough East NDP)

Marland, Margaret (Mississauga South PC)

Mathyssen, Irene (Middlesex NDP)

McClelland, Carman (Brampton North L)

Morin, Gilles E. (Carleton East L)

Murdock, Sharon (Sudbury NDP)

O'Neil, Hugh P. (Quinte L)

Owens, Stephen (Scarborough Centre NDP)

Villeneuve, Noble (Stormont, Dundas and Glengarry PC)

Substitution: Huget, Bob (Sarnia NDP) for Mrs Mathysssen

Clerk: Arnott, Douglas

Staff: McNaught, Andrew, Research Officer, Legislative Research Office

The committee met at 1325 in room 228.


Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.

The Chair: Seeing a quorum, before the proceedings begin this afternoon I would like to read a letter from the Management Board of Cabinet in regard to the Freedom of Information and Protection of Privacy Act. I will make sure that each member gets a copy of this letter. It says:

"Dear Mr Duignan:

"It was kind of you and your committee members to accommodate my request to appear at a later phase of the committee's public hearings on the freedom of information and protection act, 1987. This postponement will not only allow me to attend more fully to the estimates submissions now under consideration, but will also give me the opportunity to hear the public's views and incorporate them into my intended statement.

"Aware of the critical role of your committee in ensuring a meaningful public participation in the review of the act, I shall continue to follow closely the deliberations during the public hearings. In particular, I look forward to the recommendations your committee will put together which, I am confident, will make a significant contribution towards creating a more open and accountable NDP government for all Ontarians.

"In the meantime, I feel that it is important that we maintain as open a process of consultation as possible to enable us to hear the divergence of opinions on this issue. The resolution on the question of open government hinges both on specific initiatives as well as on the manner in which we develop them. I expect that my ministry's own submission before your committee will in fact try to reflect as broadly as possible the many concerns of your constituencies.

"Thank you once again for your kind consideration of my schedule. Please relay to your committee my continuing commitment and support."

Signed, "Frances Lankin, Chair" of Management Board.

I will make sure that each member gets a copy of that letter.

Mr Owens: We had a presenter, Ken Rubin, who spoke to us I guess during the first week of hearings about some great difficulty with respect to obtaining information from SkyDome. I am wondering if it would be within the purview of this committee to invite either the chairman of the board or whoever would be in charge of the release of information to this committee and perhaps explain why they have such a great deal of difficulty in releasing information, as there is a great deal of public funding involved in that facility. I guess if it is within the purview of this committee, and I guess we can get the advice of the other clerk, I would like to make that request to the committee that we do invite the person or persons involved.

Mr H. O'Neil: Mr Chair, I am just trying to recall, when he spoke to us, had they given him reasons why they would not divulge that information?

Mr Owens: I do not recall that he was provided with any reasonable explanations of the refusal to grant his request and as I say, the agency does not fall under any of the exempted agencies. It boggles my mind why they would not want to release the kind of information that was being requested. I certainly think that the taxpayers of this province have a great interest in finding out what happened to that agency and I guess it is not our job to probe the details of what happened during the construction, etc, but I think it would be of interest to the committee to find out why an agency such as SkyDome would have such great difficulty in releasing information to the public.

Mr H. O'Neil: If you are going to ask someone to come before the committee, whom would you ask?

The Chair: Why do we not just ask to have the clerk look at the request, review it and get back by tomorrow morning with some comment on that? I would suspect you are looking for the chairman of the commission, or do they have a freedom of information section?

Mr Owens: I am not sure. I do not think that is public at this point.

The Chair: Okay. Why do we not have the clerk look at the request and get back, if you could have an answer by the time we sit in the morning. Any other comments? No?


The Chair: I have asked the first witnesses, that is, the joint summation on behalf of the Ontario Labour Relations Board and the other boards to come forward, please. I am wondering if you could identify yourselves with respect to your organization and the position you hold in your organization.

Mr Ellis: Mr Chairman, my name is Ron Ellis. I am the chair of the Workers' Compensation Appeals Tribunal and I will be speaking to a joint submission that has been filed with the committee in writing by the chairmen of the five tribunals and boards -- the Grievance Settlement Board, the Ontario Labour Relations Board, the Ontario Public Service Labour Relations Tribunal, the Pay Equity Hearings Tribunal and my own organization, the Workers' Compensation Appeals Tribunal.

Beth Symes, the chair of the Pay Equity Hearings Tribunal, is here with the deputation. The other chairs send their regrets. They would have been here had they not had conflicts in their schedules. Representing the OLRB is Percy Toop on my left, who is the board's solicitor, and with Beth Symes and speaking for the Pay Equity Hearings Tribunal is Mary Anne McKellar on my right. On my far right is Carole Trethewey, who is counsel to the WCAT.

I want to thank you for the opportunity of appearing and speaking with you. I take it you will have received the joint written submission. The issue we want to address is exemptions to the requirements of disclosure under the Freedom of Information and Protection of Privacy Act that are of particular interest to tripartite adjudicative tribunals.

The tripartite adjudicative tribunals which are characteristic of the labour relations world consist, as you know, or most of you will know, of a neutral chair, a representative of the labour movement or the worker community and a representative of the employers or the employer community. All of these tribunals sit in panels of three and make decisions by a process of consultation among those three representatives.

Our group has read the Environmental Assessment Board's written submissions that were prepared by its counsel, Gail Morrison, and we would wish to record that our group generally supports those submissions as well.

The particular issues with which the tribunals and boards I am representing today are specially concerned are the public disclosure of, first, notes taken during a hearing by panel members, which I will refer to as hearing notes and, second, drafts of decisions and communications among the panel members during the course of the decision-making process, the deliberative process, and for convenience we will refer to those documents as deliberative materials, that is to say, drafts of decisions and communications among panel members during the course of the decision-making process.

I would draw to the committee's attention that these concerns are not hypothetical. Both the OLRB and the WCAT have already had requests for disclosure of hearing notes, and I may tell you that the consternation with which the idea of public accessibility to hearing notes and deliberative materials is viewed by all adjudicators within our tribunal and any other adjudicators whom any of us have talked to is universal and deeply felt.

I think it is useful to the committee's deliberations to appreciate that that is a reaction, not of hardened bureaucrats reared up in an atmosphere of secret administration, but of people whose background before joining boards and tribunals is generally that of litigators who are naturally disposed to viewing the principle of disclosure of information in other respects as very important.

I think it is significant that among that group the concern about the public availability of this kind of documentation is so strong. In that connection, I would also draw to the committee's attention that this position on those materials is also strongly supported by the Ontario Federation of Labour, by employer groups and by the counsel to unions and to management and employers. The labour law subsection of the Canadian Bar Association met some time ago and was appalled at the prospect of these materials being publicly available. This is the counsel which would normally be seeking such kind of information and it is one of the rare occasions in the history of that subsection, which is a joint labour and management group of lawyers, where it has reached unanimity on a particular issue.

I understand also that you will be receiving submissions on the same points from the national organization, the Council of Canadian Administrative Tribunals, whose members will be expressing the same level of deep concern about public accessibility of this kind of material. The question then arises, why is there such a depth of concern from people whom you might expect to be friends of public disclosure generally?

Mr Chairman, by way of providing some context, I might take a moment to describe the hearing and decision-making process about which we are talking here which generates the materials to which we are speaking. What I propose to do is simply to describe the process at my own tribunal, which has certain unique aspects, but which will be generally reflective of what occurs at the other five tribunals or boards.

Basically, we get a request for appealing a decision of the Workers' Compensation Board. Our business is hearing appeals from the board's decision on workers' benefits, in broad terms. Let's assume that a worker is appealing a board decision. When we receive that request for an appeal, notice of that is sent to the employers concerned and they are asked if they will be participating in the hearing or not. We then get from the WCB the file in the matter, we put together a package of all of the materials from the file that our hearing panel will be looking at and we send that package to the worker and/or his or her representative and to the employer or employers involved. The parties are invited to look at that material and tell us whether there is anything in addition they think the panel should have, and we have a requirement that everybody give us and the other parties three weeks' notice of additional materials that will be presented.

A hearing date is scheduled, the parties appear, the hearing is held before a tripartite panel, as I have described previously, and the worker typically testifies and is questioned and cross-questioned. The worker may bring additional witnesses if he or she desires. The employer then brings whatever witnesses they may want to present who are questioned and cross-questioned. Submissions are made at the end of the evidence on the basis of the documents filed and the evidence heard and at the end of the hearing, the three-person panel goes off and has its first caucus. The three sit down to discuss tentatively what the decision in the case ought to be and I can tell you that there is, I believe, a general impression that in a tripartite adjudicating process, the worker members and employer members are there as advocates of their community interests.

In fact that is not true in the individual cases and we expect in those caucus discussions for both the worker member and the employer member, as well as the panel chair, to be expressing their frank and honest views of their impression of the evidence that they have heard and seen in those hearings. We therefore expect it to happen regularly that the worker member will be expressing views that are contrary to the interests of the worker in that particular case and the employer member may be expressing views that are contrary to the interests of the employer community and employer in that particular case. That discussion, because people are being frank and honest about the case, leads to the good-quality decision that is representative of the perspectives that people bring from bringing different experiences of the workplaces to the decision-making process.


During the hearing, as the worker and/or the employer's witnesses are testifying, the vice-chair and the members, all three of them, are there making notes of what strikes them as they go along through the process to be of particular interest or something that should be remembered or a question that should be asked or something of that nature. Those are the hearing notes to which we refer. At the caucus, notes are also made by all three members of what transpires at that caucus, what the tentative decisions were, what people's various views were. The panel chair then goes away and writes the first draft. Again, contrary to a general, I think, perception that the writing of a draft is the describing of a decision already made, in fact the writing is an essential part of the decision-making process. It is not until you put your mind to the discipline of writing something down and seeing it in writing and considering the publication of it that your mind gets down to some of the hard slogging and rigorous thinking that is required to be sure that you got it right.

So, in that process, the first draft may turn out to be different from what was determined in the initial caucus and the panel chair will send the draft then to the other members of the caucus and explain to them what the problem was, that they will see from the draft reasons that he or she has not been able to follow the tentative decision, and ask for their comments and input. Those will typically come back in written form, either scrawled on the edges of the draft -- copy of the draft -- or in a memorandum. This happens with full-time members but more particularly with part-time members, especially with part-time members living in other communities.

It may go through three or four drafts and that kind of communication may go back and forth a number of times, including one or more additional caucuses before a final decision is made. At that point, the decision is put in final form with the agreed-upon reasons and issued, and those decisions give complete reasons for the decision of the tribunal. They are published, they are sent to the parties, they are made available to the public. Particularly important decisions are selected and published in Workers' Compensation Appeals Tribunal Reporters that are available in the library, and so the materials that we are talking about are the hearing notes, the notes taken by the panel members during the decision-making caucus, the drafts of the decisions on which notes may appear from the worker and/or employer member and from the vice-chair and any memoranda that may have been exchanged among the panel members during the decision-making process.

Now it is in respect of those materials that this strong reaction against the contemplation of public accessibility to those materials arises, and I would like, then, to address the nature of the concerns that are generating those strong intuitive reactions. It is hard to articulate this. We have made a valiant attempt in our written submission and the Environmental Assessment Board also made a valiant attempt in their written submission to you. But I think the essence of the thing is that making those materials accessible effectively serves to penetrate and make public the adjudication decision-making process. It is as though the panel of decision-makers, in their discussions in private as to their views on how the decision should go, it is as though that were being taped and being made available to the public. The ability of those individuals to contribute honestly and frankly to that decision-making process at that stage in the proceedings is entirely dependent on the privacy of those exchanges. Without that privacy, those kinds of exchanges would not become feasible. The objectivity and fairness of the decision-making process depends on it being done in private, and the accessibility of this material would destroy that privacy. We have mentioned also the chilling of the note-taking process that would be involved if one knew as one was making the notes that they might be reprinted on the front page of the Globe and Mail.

Also, the opening up of the thinking processes of the adjudicators to public examination and debate on the basis of what will necessarily be incomplete and misleading information would have serious potential implications for the credibility of the adjudication process. What I note down in my hearing notes may not at all be the most important thing that I take away from that hearing, and the initial draft may turn out to be entirely different from the final decision, and there is no way that the public can be informed of the process that led from that initial draft to the final decision. The thinking processes are being opened up to public examination and debate and on the basis of what will necessarily be totally incomplete and misleading information.

I would draw your attention to a decision of the Supreme Court of Ontario, the citation for which appears at page 3 of the written submissions. It is the decision in Re Agnew and Ontario Association of Architects (1987), 64 Ontario Reports (2d) at page 8. It is a decision of Mr Justice Archie Campbell, and the points that I have been making are particularly effectively articulated by him in that case in the following passage, which reads:

"The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge. In the case of a specialized tribunal representing different interests, the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality. It is sufficient to say that there is no reason in logic to distinguish between a judge and a member of the statutory tribunal under consideration here. The same applies to their individual assessment sheets. To ask them about their individual assessment sheets or to seek their production would be like trying to get hold of a judge's notes made during the course of argument."


It is, we think, perhaps the only recorded decision of the Ontario Supreme Court which addresses this particular question. So there are substantial public interests that are not served by disclosure. And so the question then becomes, what is it that would justify a disclosure of this kind of material? One thing that becomes quickly clear is that the traditional justifications that emerge from the Williams report do not apply to the processes of the tribunals that I am representing. They do not apply to these tribunals for the same reasons that the Williams report found they should not apply to courts or to the Legislature.

The fact is that our procedures and process, our practice is open and available to the public. It is required to be open by the principles of natural justice that are enforceable by the judicial review proceedings before the Divisional Court and we all have a requirement of practice of giving full reasons for decisions. There is nothing that we look at in determining decisions in the way of materials, policies, medical files, whatever, that does not have to be disclosed in advance to the parties to the hearing and this is, as is a necessary routine, so disclosed. There is no purpose that the Williams report recognized as valid to be served by making this material public.

I would then respectfully suggest that given the serious problems that the disclosure of this material presents for the adjudication processes in this province, and given the absence of any traditional reason for requiring that disclosure, it would be my respectful submission that this committee ought to want to be confident that there are some very important other kinds of reasons for justifying that disclosure. And in our respectful submission, look as you might, you will not find any.

You will see at the bottom of our submission, at page 4, that we have a particular recommendation as far as the amendment that we are proposing is concerned. We are recommending that subsection 65(3) of the act be amended as follows to exempt tribunal members' adjudicative notes and deliberative materials from disclosure, and the provision in the act that we propose reads:

"This act does not apply to notes, including draft decisions, prepared by or for a person presiding in a proceeding in a court or other quasi-judicial tribunal if those notes are prepared for use in connection with the proceeding in question."

That, Mr Chairman, is our verbal submission. We would be very interested and prepared to deal with questions and my colleagues would be delighted to participate in that exchange if the committee were interested in having one.

The Chair: Thank you, Mr Ellis. We start the rotation today with the official opposition. You have about eight to 10 minutes to ask questions.

Mr Villeneuve: Thank you, Mr Ellis, for explaining your reasons. I somehow think that possibly initially, during the decision-making process, notes during the hearing, etc, maybe should not be made public. But I think somewhere during the decision-making process, be it at preliminary draft or final draft -- final draft I guess is where you report and it becomes public information -- I think there should be some way to see it just prior to that final draft: Where are the important conclusions that may not be in the final report but have a great deal of influence on the final decision in the appeal process?

I think somehow we as members of the provincial Legislature are quite often involved in these things, and I am not always happy with what I see. I would like to see a little bit of what happened before that final draft that we see and the appellant sees. Do you think that there is room to show or to make public to the appellant the major factors that may not be in the final report but that influenced that decision?

Mr Ellis: In my view, the reasons for the decision must be those that are set out in the final decision, and it is those reasons on which the tribunal must rely and must stand on in respect -- when challenges come from the parties about the decision.

There is no point, as a practical matter, no line you could draw between the private and the public, other than the line that is drawn at the final decision, that would be useful in that regard. Because if you looked at the draft before last, what you would see would be the correction of a number of typographical errors, and if you looked at the draft before that, what you would see would be maybe a change in a sentence -- no explanation for it in any of the material, just a change that will have reflected a discussion, perhaps on the telephone, perhaps over lunch among the panel members.

So if you got that and saw that the sentence had been changed, where would that take you? I suggest it would take you then into an inquiry into the decision-making process. Who made that change? Why was the change made? What was the discussion and so on? There is no way to stop that inquiry from going straight into the heart of the adjudication process and the decision-making process.

With great respect, in all of our views, the adjudication, the decision-making process cannot survive that kind of probing inquiry after the fact. It has to take place in an environment of privacy in which people have confidence that that privacy will be respected after the decision has been made.

Mr Villeneuve: Are there minutes of your caucus meetings, be they one, two or three? Are there any formal or informal minutes kept of that?

Mr Ellis: In our tribunal, usually each of the three members jot their own notes down, usually at the end of the meeting, just to record what the decision was and who was going to do what and so on, because we are dealing with -- I have described one decision. Typically our employer members would sit on four cases a week and so you might not get back to this particular one for several weeks. You need a note to recall or to bring that discussion back to your mind. So it is that kind of note. They would be very brief, very non-standard, very personal to the individuals concerned, but that would be all.

Mr Villeneuve: So it is your feeling that when the caucus and you as a chair of a committee come out with specifying your reasons for this decision, you have basically covered all of the pertinent bases and you have made them public.

Mr Ellis: Yes.


Mr Owens: I would like to pursue Mr Villeneuve's line of questioning if I may. I would tend to agree with respect to the issue of not allowing the private notes to be subpoenaed or whatever process is requested under freedom of information. My problem is, however, how do we open up this process?

Having come from a labour relations background and reading some of the decisions by arbitrators like Kevin Burkett, whose decisions are quite lucid and extremely well written and who will take you through the process that he used to come to his decision, and then again reading some decisions of arbitrators whom I will not name whose logic is not always quite clear and where the decision is not always supported by the logic that is rendered in the document, I am just wondering how we can get some type of a process, recognizing that all arbitrators, all panel members of the WCAT are not trained writers by profession.

How can we make that process more open and more accessible so that the reasoning that you claim is supposed to be in the decision is in fact there so that we would not need to go inquiring behind the scenes and wondering what was on the decision-maker's mind when he or she made that decision?

Ms Symes: Mr Owens, that is an excellent question. It addresses a different concern, and that is the proper training of adjudicators in writing decisions. I think that writing the decision is the most difficult task of being an adjudicator, and at our tribunal we have put in process decision-writing workshops with judges of the superior court such as Mr Justice Catzman, professors of English and other experienced adjudicators such as Pam Picher, to come and talk about how you write decisions first of all that are clear, secondly that are understandable by the grievor or the person who actually came before them as opposed to the lawyers, and third that convey the answer in a clear and convincing manner.

I think the answer to your question is good training in how to write decisions. One of the things that we have learned is that the minimum number of drafts needed to get clarity and precision is at least three, and that an adjudicator in trying to achieve that clarity of thought and expression has got to work very hard. I think your concern is that decisions are uneven and some of them that are 50 and 60 pages long you flip to the back page to try to find out who won or lost, that we have all got to work to have more relevant decisions that are shorter and are accessible to the people who come to us with disputes.

Quite frankly, sir, opening the drafts to public display would first of all not help the process, and I suggest it would be absolutely counterproductive; namely, you would get the first draft, otherwise known as the kitchen sink, and that would not produce clarity or precision. In fact, it would do just the opposite.

Mr Ellis: Could I just add one other thought in response to that question? There are remedies already for that kind of a problem where you have a decision that is not very understandable. For example, many tribunals, ourselves among them, have the power to reconsider so that we typically -- not typically, but occasionally get a letter in after a decision has gone out that says: "I do not seem to have attended the same hearing as this panel attended. Here are three issues that we discussed at length that were not covered, and I would like to have this reconsidered." We will send that back to the panel and get them to supplement their reasons in response to that kind of a request.

There is also the remedy currently available at the Ombudsman. If a decision of that nature, inadequate reasons, is taken to the Ombudsman, the Ombudsman's investigation of the things that are not spoken about in the decision may well have the result of having the tribunal look at it again.

With respect to private arbitrators, who are selected by agreement of the parties, if the parties are not getting the kind of reasons that they want from the arbitrators that they are retaining, then they have a very easy remedy and that is to stop retaining those particular arbitrators.

I do not think that kind of a problem would begin to justify the kind of radical remedy that public exposure of these materials would entail.

The Chair: Are there any further questions?

Thank you, Mr Ellis.


The Chair: If the witnesses from the Ontario Genealogical Society could come forward at this time, please. Thank you for coming this afternoon. If you could state your names, then you have about 20 or 25 minutes to make your presentation.

Mrs Simmons: I am Marjorie Simmons. I am the chairman of the ministry liaison committee for the Ontario Genealogical Society, and we are here to address the post-1869 vital statistics records of Ontario. I have already distributed a copy of what I am going to speak about today.

In today's society we are seeing an unprecedented erosion of the benefits to be derived from the basic family unit. We feel that sound family relationships are an urgent imperative.

The individuals, who are we ourselves, who are compiling family histories are a vital force in promoting the benefits of family life. We study and record the links between generations and the details concerning the lives of those links, and in doing so we extol the virtues of family life.

The Ontario Genealogical Society requests an amendment to the Freedom of Information and Protection of Privacy Act to remove an obstacle to the free gathering of information about past family records, specifically the vital statistics records.

I am addressing three clauses in subsection 21(2) of the act. Subsection 21(1) states that, "A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except" -- and the first point is clause 21(2)(d) -- "the personal information is relevant to a fair determination of rights affecting the person who made the request." Our comment: It must be the right of any person to determine for his family's historical record the simple facts of date and place of birth of any of his ancestors, the date and place and the name of spouse of the marriage of any of his ancestors, and similar information of death, if this information is available in any record.

Clause 21(2)(f): except "the personal information is highly sensitive." Our comment is that in our society we are seeing decisions supported by the courts stating firmly that there is no sensitivity touching on birth, marriage or death.

The third clause, clause 21(2)(i): except "the disclosure may unfairly damage the reputation of any person referred to in the record." Again, the courts have established that no information concerning birth, marriage or death could possibly damage the reputation of an individual who would be mentioned in that record.

These three points could be advanced as a logical basis for requesting open access to all vital statistics records immediately they are collected. This is, in fact, the policy in Scotland and in a number of other countries which less closely parallel our own.

However, it is recognized that social changes encounter less criticism if they are implemented in stages. In consequence, the Ontario Genealogical Society requests an amendment to the Freedom of Information and Protection of Privacy Act which will permit open access to the registers of vital statistics as follows: that all Ontario birth and marriage records be released into the public domain following a 75-year confidential period from the date of the event, and that all Ontario death records be released into the public domain following a 30-year confidential period from the date of the event.

This latter point of course is already covered in the act, but we include it here for the sake of uniformity.

I want to thank you for allowing us to be present today and Mr Gullen will speak to you further about this.


Mr Gullen: I am Malcolm Gullen. I am a member of the OGS liaison committee and I would like to use two minutes to just discuss very generally genealogy and family history. These two terms are almost synonymous; there are several distinctions.

Today is the culmination of 22 years of effort to gain recognition from the government of Ontario that genealogists and family historians should have a more liberal access to the vital statistics records of Ontario -- 22 years.

I think there is the impression among some public servants in Ontario, at least in one ministry, that genealogists and family historians belong in the narrow zone that separates the area which is covered by normal people and the outer fringes of normal people. Genealogists are in fact pillars of their societies. They tend to be retired people, senior citizens; about half of us are senior citizens. We tend to be stalwarts in our community. We belong to the lower, middle and upper classes. We are, if nothing else, scrupulously honest in paying our taxes and we all take good care to vote. There are 5,500 of us in Ontario, and these are members of the Ontario Genealogical Society who are willing to pay $30 every year as a minimum, branch fees over and above, to declare their interest in their pursuit of the history and roots of their own being.

I looked in the CVs that I was given of members of this committee to see if I could find two names that I thought might be particularly responsive to a discussion of genealogy. I found two. The first is your chairman, Mr Duignan. Is that how you pronounce it?

Mr Duignan: Duignan.

Mr Gullen: Mr Duignan. And the second was Mrs MacKinnon of Lambton.

McLysaght's book, Surnames of Ireland, says that the name Duignan had its origins in East Connaught. Now, East Connaught is the northwest quarter of the Irish Free State and it encompasses about seven counties. The easternmost counties are Roscommon and Leitrim, and Roscommon and Leitrim were extremely hard hit in the 1840s with the Irish potato famine. So I suggest it is possible that your forebears came to Ireland along with my wife's forebears around about 1840 or 1850. However, I notice that three of your children have got essentially Celtic given names, and it may be that either naming your children is an established family tradition or you came to Canada much more recently than the 1840s.

Mrs MacKinnon, you have eight grandchildren. Do these grandchildren all know that they are descended from the Clan Alpin? They do, good. Do they know that the Clan Alpin is situated in Arran and in the east coast of Skye? Do they know the name, the maiden name of their grandmother?

Mrs MacKinnon: Mine? Certainly they do.

Mr Gullen: Good. Do you in turn know the maiden names of your two grandmothers?

Mrs MacKinnon: Yes.

Mr Gullen: Good. Well, I was right in one case anyway.

Mr H. O'Neil: How come you picked only the NDP and not the Liberals?

Mr Gullen: Well, the Liberals tended to have rather ordinary names that were very difficult to --


Mr H. O'Neil: Hugh Patrick O'Neil is ordinary?

Mr Gullen: Well, I am not saying it is -- I should not have said ordinary.

Mr H. O'Neil: I am just kidding.

Mr Gullen: But there are thousands and thousands of O'Neils all over the place.

Interjection: Some of them are quite proud of it, I am sure.

Mr Gullen: Well, can we move on now to the second brief? There are two briefs submitted. The first one dealt with the OGS experience of the office of the registrar general of Ontario, and the second one was of four pages, and it is access to the post-1869 vital statistics records.

Paragraph 2 reiterates the wish expressed by Mrs Simmons, my colleague. Paragraph 3 deals with the incorporation of the 30-years-dead rule in Section 2(2) of FIPPA. And I was pleased to notice that the minister on 27 March made a statement that all supporting documentation including medical statements of death will be transferred to the archives. This is quite important to some few family historians.

Can we move now to section 4? It deals with marriage records. Now, I ask a question: What information provided in a marriage record could by its publication cause pain, distress or embarrassment to either party to the marriage and constitute an invasion of privacy, particularly after 75 years?

I am sure that some of us, anyway, know of people who have celebrated their diamond wedding anniversary. A diamond wedding anniversary is 60 years. How many of us know people who have celebrated their 75th wedding anniversary? I think there are precious few people who celebrate a 75th wedding anniversary. So really what we are talking about here are marriage records that relate to people who are now dead. But the inclusion of marriage records in the 75-year rule simplifies enormously the publication of marriage indexes. It makes it very easy to locate a marriage.

I point out too that the 75-year rule is identical with a proposal which is contained in a document published by the Thatcher government. It is a white paper. I have a copy here. Paragraph 5: The white paper governs access to registrations of births, marriages and deaths in England and in Wales. Scotland is completely separate. In Scotland, anyone can have access to an index of birth, death and marriage events almost from the time that these records are created. It takes about 6 to 12 months for the paper registration to be keyed into a computer database. Once the material is in the computer database, it is open to public scrutiny by anyone who cares to pay $18.40; they can spend a whole day browsing through the computer database. Once they have located a record, they can either take notes from the record themselves or they can pay $9 and something and get an official transcript taken from the record.

This information about Scottish practices is contained in a letter I have from Brian Philip, who is the deputy registrar for Scotland in Edinburgh, and I have a copy of that letter with me which I would be glad to have photocopied if you want it.

Paragraph 6: Prior to the white paper, the British government published a green paper. The purpose of a green paper is to present the government's thoughts on a topic through public discussion. In this green paper -- I have a copy here -- they outlined four possibilities of handling what they refer to as "historical" vital statistics records. They outlined four choices, and the last choice they outlined was the 75-year rule, which option, on balance, the government believes to be preferable. They waited 14 months and they had about 200 group responses. They considered all these and 14 months later they published the white paper, which says that as far as the British government is concerned, historic records are those records which are more than 75 years old, and access is free; they are now in the public domain.


I thought it was interesting in paragraph 7 to look at how many Ontario residents would be affected by the publication of birth records -- how many living Ontario residents would be affected. It turns out that about 50% of male children born live in Ontario and 70% of female children born live in Ontario reach the age of 71. So about half the men who are around today and 70% of the women would be affected if their birth record was released.

So the question arises, does public access to a birth registration 75 years after the event constitute a meaningful and substantial invasion of personal privacy? Until about 30 years ago it was believed that a birth record should be concealed -- a birth record should be kept private because it may conceal what was called an illegitimate birth. I suggest that today the concept of an illegitimate birth is very substantially null and void.

I discovered just yesterday a paper that was published by the government of Quebec. It is called "La situation démographique du Québec." It was compiled by a demographer, Louis Duchesne, and published by the Quebec government, and this makes the very startling announcement that if current trends continue, fewer than half of all Quebeckers under the age of 50 will ever be legally married. If this is the case, then there are going to be many, many instances of so-called illegitimate births, at least in Quebec. I have no details like this for Ontario, but I suggest that the concept of illegitimate birth has very much gone by the board.

Actually, the concept, I think, arose in Scotland, and was not so much concerned with the moral aspect of the birth outside wedlock as it was concerned with the fear of the parish officials that the mother and her child would be a financial burden on the parish; somebody had to look after them. There are many instances recorded where if a woman was discovered to be unmarried and pregnant -- if she did not belong to a village, if she was not born in the village or in the parish -- she was smartly whipped off to wherever she was born so that her parents or her family could assume the responsibility of looking after her and her child.

I was asked, what do you say to someone who says, "Look, I've got an 83-year-old aunt who, it turns out, was born out of wedlock, and we would be absolutely mortified if this became known." In the last section of paragraph 7, I have suggested a mechanism by which this kind of situation can be tackled. But I do think that an extension should be (a) an individual act and (b) a deliberate act on the part of the applicant.

We have benefited from correspondence with a man who is a reasonably accepted authority on vital statistics records in the United States, Thomas Kemp. Now, he has his own ideas on vital statistics records. He feels that vital statistics records should enter the public domain at the time they are created and he gives his reasons. It was he who suggested that the society get in contact with the International Institute for Vital Registration and Statistics, of Bethesda, Maryland. These people wrote to me and I have copies of their correspondence in here if you want to look at it. They told me that, as in Scotland, vital statistics records enter the public domain very shortly after their creation in Argentina, which is not unlike Ontario; Bangladesh, which is very substantially different; Chile -- well, perhaps it is like Ontario; and the Dominican Republic, which again is hardly like Ontario.

I thought that paragraph 9 was particularly significant. Mr Kemp described a common practice in New England where cities and villages, towns, regularly publish an annual report that includes all the birth, marriage and death events that occurred in that year. Now to me this is significant because as a family historian I am interested in knowing where these things are published, but also because it indicates very clearly the absence of any state legislation that prohibits this activity. In other words, in the New England states that publish these things annually there is no state legislation which says that people cannot do this.

One of our members suggested that I contact the archivist of Alberta in Edmonton and I did. I have a letter from him that really describes the material that I have covered in paragraph 10. They have 24 metres of shelf space of registers of baptisms and marriages which extend from 1898 to 1983 to which access is given. Another accession number consists of 166 name index books to births, marriages and deaths which took place in the Northwest Territories and Alberta from 1874 to 1982, which is only nine years ago. So access in Alberta is given to records which are only nine years old.

Now, a problem arises here. I got hold of the Vital Statistics Act of Alberta and I looked up subsection 32(7.1) and it appears that the archives of Alberta are breaking the law. Because subsection 32(7.1) says:

"Notwithstanding subsections (2), (4), (6) and (7), a certified copy, photographic print or certificate, as the case may be, of the registration may be issued to any person if

"(a) in the case of subsection (2)" -- these are birth records -- "100 years has elapsed since the date of birth,

"(b) in the case of subsection (4)" -- these are marriage records -- "75 years has elapsed since the date of the marriage, and

"(c)" -- this is about deaths -- "in the case of subsections (6) and (7), 50 years has elapsed since the date of the death or stillbirth, as the case may be."

I do not know how you reconcile these two things. On the one hand, Alberta says that you can get access up to 1983 or 1982, and you look at the Vital Statistics Act of Alberta and it says something which is quite different. The only way I can see to reconcile this is that, briefly, it is okay to look, but it is not okay to publish. In fact people who have access to Alberta archives are required to sign an agreement with the archives of Alberta and one element in that agreement is that they agree that they will not publish unless they have the specific written consent of the director of Vital Statistics in Alberta.

We ask that you review this submission and the two written submissions very carefully, and we do hope that you will agree to include the 75-year rule in the FIPPA. We would like to very respectfully suggest that a new, complete section of FIPPA be devoted only and exclusively to birth, death and marriage records and that the word "record" be used and the words "public domain" be used.

I had some correspondence with the office of the registrar general of Ontario, and in my opinion they were being very picky because they claimed that if somebody else's name -- if the name of a living person appeared in a record, then issuance of that record, giving access to that record could be held up because the person was still alive.


In my opinion this creates a ludicrous situation. Suppose a man dies and at his death he is attended by a physician who could be relatively young, about 25 or so. Now, if the physician signed the death certificate and gave his full name and his academic qualifications and perhaps his address, then does this mean that we have to wait until that physician dies and 30 years after that before the record can be released? Well, apparently on something like this we have to ask for an assessment from the commissioner.

The Chair: One minute to wrap up.

Mr Gullen: That is all. Thank you very much.

The Chair: Thank you very much. Did you wish to submit the white paper and the green paper and the various letters you had as evidence to this committee?

Mr Gullen: I have them here. I have already submitted copies, but apparently they have gone to the wrong place. Nobody told me, but they went to the assistant commissioner for privacy, and in fact they should have gone to the Management Board of Cabinet. So the assistant commissioner for privacy has copies of all these things that I have mentioned. You can either ask the clerk to recover them, or, if you simply tell me what records you want copied, I will provide them.

The Chair: In fact, it should have come to the clerk of this particular committee, as we are the committee that is dealing with the review of the act.

Mr Gullen: Would you like a copy of the white paper and the green paper?

The Chair: A copy of the white paper, the green paper and the various letters you indicated.

Mr Gullen: I will turn these over to Mr Arnott.

The Chair: Thank you very much. Mr Villeneuve.

Mr Villeneuve: Thank you very much for your presentation. I know I have received several letters from constituents reinforcing very much what you have just submitted. Does the federal act, the Access to Information Act, have any bearing on genealogy and what your interests are?

Mr Gullen: I do not think so. I have not searched the federal freedom of information act to discover it, but I believe that vital statistics records are entirely a provincial matter.

Mr Frankford: Can you briefly tell us who has access to death certificates?

Mr Gullen: After 30 years a death certificate enters the public domain by subsection 2(2) of the Freedom of Information and Protection of Privacy Act, and I assume that anyone -- after a person has been dead for 30 years, any information concerning them is no longer classed as personal information. To me, that means it is now in the public domain, so that anyone who wants it can go and ask for a copy of a death certificate 30 years after the event.

Mr Frankford: Pardon my ignorance. Who, if anyone, has access right now in, let's say, the year or years immediately after someone's death?

Mr Gullen: I do not know. I suppose immediate members of the family would have access. The person who was looking after the settlement of the will would need a copy of the death certificate if there was an insurance policy involved.

Mr Frankford: Well, I would have to check. I am not even sure if it is that clear and I was a physician before I got into this business.

Mr Gullen: Are you from England?

Mr Frankford: No, certainly it was not clear and quite often one had to sign a certificate for the family for insurance policies, which was not -- which had to be done because they, I believe, could not get the certificate themselves.

Mr Gullen: I know in Scotland the undertaker has to have a copy of the death certificate because he has to bury the body.

Mr Frankford: That is right.

Mr Gullen: But I just assume that insurance people have access and probably any member of the immediate family would have access.

Mr Frankford: Yes. Well, my recollection is that it was much more accessible in England and it was taken for granted that the family might well need it.

Mr Gullen: But as far as the public domain is concerned, it is 30 years under subsection 2(2) of FIPPA.

Mr Frankford: Plus in Scotland and other jurisdictions, you could go and --

Mr Gullen: Well, I know I have my own grandfather's death certificate, and he died in 1945. But from what I read from Brian Philip, anyone can go and identify a death and if they wish, they can look at the certificate.

Mr Frankford: And if I am not mistaken, here, if people are doing medical research on causes of death or patterns of death, that needs some special dispensation.

Mr Gullen: Yes, I know that there are some international standards, there is a code that corresponds to different causes of death and these are statistical records that are published, I believe, whereby you can keep track of the number of cases of people who died of suicide or something like that. But I do not think individuals are identified for this record.

Mr Frankford: But I think these things may be primarily produced by government departments and that individual researchers have to get special dispensation.

Mr Gullen: It could be.

The Chair: Any further questions? Thank you, Marjorie and Malcolm, for coming along and making your presentation this afternoon.

Mr Gullen: Thank you very much.

The Chair: And to correct the record, I am just a recent immigrant to Canada, for the last 16 years, but my family have been coming since 1919.

Mr Gullen: Did you come from Roscommon?

The Chair: Not Roscommon, but actually, my parents were born in Tipperary, which is just south of Roscommon.

Mr Gullen: Well, I was not that far out.

The Chair: No.

Mr Villeneuve: A long way.

The Chair: Thank you very much for appearing here today.

I am wondering if the witnesses from the Canadian Manufacturers' Association would come forward at this time.

I understand that the witnesses for the next presentation are not here yet, so I am ordering a 10-minute recess. The committee will reconvene at 2:50.

The committee recessed at 1438.



The Chair: I would like to call our next group of witnesses, from the Canadian Manufacturers' Association. Welcome to the committee hearings. Could you state your name and the position you hold in your organization? You have about 20, 25 minutes.

Mr Dean: Thanks very much. I am John Dean, senior counsel, manufacturing and development with IBM Canada Ltd, representing the Canadian Manufacturers' Association as the chair of a legislation subcommittee dealing with privacy and freedom of information. On my immediate left is Susan Boughs. She is legal manager for the east for Shell Canada Products Ltd. On my far left is Deborah MacCormac. She is corporate counsel for Du Pont Canada Inc. We are employees of firms that are members of the Canadian Manufacturers' Association. On my right is Ian Howcroft, who is a staff member of the association.

I understand that you have received copies of our brief in the form of a letter to the Chair. Before turning to the brief, I would like to emphasize that businesses create and gather information that is just as sensitive to the wellbeing of the organization as personal information is to the wellbeing of an individual. Improper disclosure of this sensitive information could very well result in damage or injury to the organization, whether it be from lost sales, lost revenues, lost technology -- it comes in many forms. And the loss to the business goes further than just a loss to the business. It also has a direct impact on the employees working for the business as well as the families of those employees.

The kind of information I am thinking about is information that may relate to tax projections, future products, technology, employment predictions; any information that is important to the operation of the business. If that information should fall into the hands of a competitor, the realistic expectations that a business might have arising from giving the information to government -- whether it be voluntary in support of grant applications approvals or whether it be mandatory as required by the various statutes that are after information that must be supplied -- these expectations may not come to happen. So it is very important that sensitive information of businesses be handled properly and held properly by government when that information is provided to government.

In the time since the Freedom of Information and Protection of Privacy Act took effect, the association has noticed a number of things, but there are two issues that we would like to focus on today. The first has to do with the definition of "supply" in subsection 17(1) of the act and, flowing from the concern with respect to that definition, an issue that we did raise prior to the act being declared effective, a concern that there should be a right of appeal to the courts -- appeal from decisions of the commissioner to the courts. Those are the two issues that we want to focus on.

As I have stated, just as it is important to keep personal information about individuals private, there is a legitimate need to keep the business information of organizations private. If confidential business information reaches the hands of a competitor, there may well be an unfair competitive advantage resulting in loss to the owner of the information and gain to the competitor. The need to keep important business information confidential is an ongoing concern whenever it is necessary to give such information to government institutions, regardless of whether the information is given because of a mandatory requirement in a statute or whether it was volunteered. The concern is even more important, though, if the information has to be given because of a statutory requirement.

Prior to the introduction of the Freedom of Information and Protection of Privacy Act, 1987, there were processes in place to maximize the amount of confidential information given to government while protecting the information from unauthorized disclosure. Government and business could agree on the terms, on what was to be done with the information and who was to see it. Statutes that made it mandatory for the business to provide information usually provided for the confidential retention of that information. I am referring to statutes like the Securities Act, the Corporations Information Act and the Business Corporations Act, which require data to be given but require that it be kept confidential.

Introduction of the information and privacy act changed the process for government handling of confidential information. Business now is only protected from damaging and potentially damaging disclosure if the information meets the criteria of section 17 of the act or if it was given under another statute that specifically protected the confidentiality of the information.

There was a change to the information and privacy act that took effect at the beginning of 1990, and this in effect repealed the confidentiality provisions of the other acts and established confidentiality within the Freedom of Information and Protection of Privacy Act. About 11 statutes that used to have their own confidentiality sections were preserved specifically by reference in subsection 67(3) of the Freedom of Information and Protection of Privacy Act.

The rest of these statutes that had the confidentiality protection repealed were not specifically mentioned as a result of the 1990 amendment. I gather it was decided not to have long lists that could quickly become outdated but rather to treat the subject in a general fashion -- which the association agrees is the right way to go about it -- and if there was protection afforded information given under those other statutes that were not picked up in section 67, the general section 17 would suffice.

I am not going to get into how one protected information given to government under section 17; that is, information either voluntarily given or given because of a statute. It is set out in the brief and it is merely a reiteration of the section. But the key thing to note from the concern that we have is that the information to be protected under section 17 must have been supplied to the government institution in confidence. The association is concerned that, because of a narrow interpretation of the word "supply" in section 17 by the former Information and Privacy Commissioner, it may be impossible to meet the section 17 criteria to prevent government disclosure of confidential business information.

The commissioner has held in several orders that business information that had to be given to government because of an agreement, a pre-negotiated agreement, was not "supplied" and therefore not qualified for protection from disclosure under section 17. This logic could extend to situations where business information is given by mandate of a statute. If information mandated by statute is deemed not to be supplied because the donor had to provide it, there will be no protection under the act unless the mandatory statute is listed in subsection 67(3). Business information provided as a result of one of the statutes that was excluded from being specifically referenced in 67(3) is then unprotected.

Our concern about extension of the logic that came in particular from order 87 to mandatory statutory situations is heightened because the former commissioner has been heard to have previously promoted such an extension.

This association feels the act should be amended to define supply in such a way as to protect business information given government from disclosure if it meets the other criteria of section 17, regardless of whether it was provided in a voluntary manner or because of the requirement of another statute.

We do not feel the Legislature intended, nor is it fair, to remove information previously protected under other acts from section 17 on the basis of a non-judicial interpretation of the word "supply." Nor do we feel business information provided under a negotiated agreement should fail to meet the supply criteria. The donor did not have to agree to sign any agreement requiring the provision of the business information, particularly in order 87. By signing such an agreement, the donor is merely pre-declaring a decision to voluntarily provide the information which, without such an agreement, would not fail the supply test. Pre-signing an agreement does not change the confidential nature of the information nor the potential damage to the donor.


In our opinion, "supply" should apply to information given with or without an agreement. We really feel that "supply" means "provide without concern as to how or why the information was supplied." The concern we have with the non-judicial interpretation of the word "supply" raises the question of whether this would have occurred had there been a right in the act to appeal a commissioner's decision to a court of law. Without such a right there is a perception, right or wrong, that decisions may have been taken based on political considerations that would not have occurred had there been such a right.

Business wants to feel comfortable that the information that is given government, whether it be voluntary or mandatory, will be used in the way it was intended and not in a way that will hurt business. If the latter could occur, there is a tendency to hold back on the amount of information being given, which I do not think is in the best interests both of business and government.

We recommend an appeal from the commissioner to the courts be specified in the act along the lines of the federal access to information legislation. We feel this is necessary to provide a process that is, and is clearly seen to be, independent of government when there is a dispute as to whether or not requested information should be released.

We have seen several situations where a commissioner made confidential business information available that might otherwise have been protected by section 17. Who knows, the next situation may involve a different time, a different commissioner, a different government and the decision may be made not to release the information that perhaps should have been released. A right of appealing a commissioner's decision to a court of law, in our opinion, will go a long way to alleviating our concern.

That ends the formal presentation. I and the other members will be very happy to answer any questions to clarify what we have said and raise new points with respect to what we have said. Thank you.

The Chair: Thank you, Mr Dean. I invite the government party to open questions. Mr Owens.

Mr Owens: Thank you, Mr Chairman. With respect to legislation like the workplace hazardous materials information system legislation that came into effect a year or so ago that provides protection for trade secrets being released, how do you folks feel about the implementation of legislation like WHMIS, the right to know, and where a trade secret, whether it is a blend of a certain substance or chemical, may in fact be needed, the knowledge of that blending or the end product is needed by a worker or an employer to protect the workers? How do you feel about the release of that kind of information to workplaces?

Ms MacCormac: We are involved in that and we are very supportive of the program. As you know, the trade secrets, the mention of that is shortly coming on board and certainly, from a worker's health and right to know and welfare perspective, we are very supportive of it. We do not think you necessarily have to have competing sorts of interests there. I think the interests of the company are that employees are protected and the public has the right to know, but by the same token that does not necessarily mean that everything in that information be made public -- as long as the people who have to know do know.

Mr Dean: I support what Deborah says. A number of jurisdictions have entered into jurisdictional initiatives through exchange data. The concern I would have and that a number of other members of the association have is that there may be information required or supplied voluntarily under one of the other jurisdictions that gets exchanged with the government of Ontario, which is subject to the Ontario WHMIS rules, and we would be very concerned if section 15 of the act, which is a discretionary one, was used to allow information to be released that would not have been obtainable directly from the jurisdiction where it was first supplied. It is a thorny one and we chose not to add that as a third point, but that would be our concern in the WHMIS area, that information given to one jurisdiction and exchanged to the other does not somehow get a lower level of treatment.

Mr Owens: I guess that is the rule of thumb, especially in this province. If you want information on a specific company that you may not be able to obtain here in Ontario, the best place to find it, of course, is in Washington with the securities commission. Do you have any other recommendations you could make to this committee with respect to freedom of information and how you would like to see it impact or not impact on your members?

Mr Dean: One comment I have, but again, we wanted and felt there was an opportunity to have an impact in the area of the definition of "supply" and "court appeal." If that is seen fit to be moved forward with, a lot of our other concerns would go, but our thinking is that the standard under section 17 is very much higher than the standard in other jurisdictions, and it is a difficult one to meet.

Our membership felt we would just focus on the two issues, but that is the position of a number of members we have. The tests and the standards, if you have read them, which are "undue loss" and "prejudice significantly," what do those phrases mean? It is sometimes hard to show undue loss. If a competitor gets the information and is discreet, the loss may be imperceptible after the event, and in front of the event it may be even harder to establish. We will have to look at how it is working a little longer to see if it really is an insurmountable problem. At the moment we have chosen to be silent. Those are the views of some of us with respect to that question.

Mr H. O'Neil: About the general release of certain information: Have you any examples of a couple of cases that you could use, as far as the manufacturers' association would be concerned, where there was harm done, without using company names?

Mr Dean: It is a hard one to prove because a company that is hurt does not go around talking about it. From an IBM perspective, we have not suffered any damage that I am aware of because of information being obtained from Ontario, but as a company we have not had that much activity in the provincial area. That may have something to do with the nature of our business with the Ontario government. We find at the federal level that there is a lot of activity, and the competitors are trying to get information about us to allow them to have an edge or to better compete with us. There has been a working relationship particularly with the departments of planning services in IBM's case. The notices come in, we respond, but it has to do with proposals and contracts and that kind of information. Some of the information we do not have a problem with and others we would, and we worked out a process, I guess you would call it, in terms of what can go and what cannot go and that seems to be working.

But again, the concern we have is potential, and in part it is based on our experience with our parent company in the United States. A number of organizations have been set up in the United States, and we can see it starting to happen in Canada, that are in the business of getting information and storing it and selling it to organizations that want it. That concerns us because we do not know what might happen to information on us that may be stored and sold. We do not think, and I am talking again about IBM's experience, that that is going to be good for us from a competitive point of view. So we are concerned. Have we any concrete examples?

Ms MacCormac: We have just been notified that there will be an appeal against a decision made by the Ontario government to disclose certain information about one of the new plants we opened in Maitland. The initial application was made and they wanted to see our certificate of approval. But as you may guess, our certificate of approval for a large manufacturing component in this plant is a significant piece of documentation. We sat down with the government and went through this and said, "We would prefer this, this and this, this not to be disclosed and you can certainly disclose this." So the government was happy with that and it was disclosed and now there is an appeal being made against that decision. And we have no idea who is making this appeal because it is done through a law firm, so we do not know the main person who wants this information.


But what we are looking at here is somewhere in the neighbourhood of an $18-million investment to get this project up and going, about 10 years of research time, a $30-million investment in the capital equipment and plans and this sort of thing for this plant. We have samples of design and how the operation is set up. We purchased that as proprietary information from a third party and said we shall not disclose, but we gave that information to the government as part of the certificate of approval. So all that information is there for the government to use in its judgement as it sees fit.

But there is some very nice information with respect to one aspect of that which, if it could be had through this piece of legislation, would be very harmful to my corporation, because we have invested a lot of time and energy and so have the people we have hired to help us bring this thing into fruition. Just to know how much of this product we are going to make, and the design and layout of that plant, could be very useful information. I think it would do us a very great deal of harm to have to disclose that beyond the government.

Mr H. O'Neil: Maybe I should know, but I do not, but in a case like that, where you have had somebody request that information, can you not demand to know who is requesting that information, even if it is through a lawyer?

Ms MacCormac: I do not believe we can; I did not think we could.

Mr Dean: The particular --

Mr H. O'Neil: That would be interesting to know, I think, Mr Chairman, something like that. If people are going to demand information from certain parties, I think those parties should know who is requesting the information.

Ms MacCormac: You see, one of the aspects of it, too, is that the original intent of this legislation, if I am not mistaken, is mainly from a health and safety dimension, is it not? It is not going to help anyone to know the volume or the production quantity of this operation, because we have provided the material safety data sheets, which is all the background material that tells you of all the possible health effects. So all that information has been taken into account and is available to the government. What falls out of it is really the practical information the public needs to know, like: "What is this plant going to be doing? How is the air going to be impacted? How is the water in the stream that runs by my brook going to be impacted?" Those are significant facts.

I do not think it helps them -- a neighbour, for example, or a worker -- one bit to know the actual volume, but a competitor would absolutely love to have that information because then he would know how much room is in the market for him and what our projections and our -- very expensive, as you know -- research and marketing information has come up with. So you can see where that sort of separates the health dimension from it, from a very practical, hard-core business dimension.

Mr H. O'Neil: You have turned it down and made an appeal?

Ms MacCormac: We have an appeal now. We are preparing the documentation, but we do not appear in person. We are only allowed to make written submissions, and the decision of the commissioner is final. We do not get to come in person and plead our case; we send it in in writing and keep our fingers and toes crossed that the commissioner will rule in our favour.

Members of the ministry who are working with us are saying, "Well, we hope to heck that it does get ruled in your favour because if it goes against you we can see the problems it is going to create for other industries." They are not going to want to be as open and candid with the certificates of approval applications, and you are going to have this pulling back and forth, the government saying, "I need more," and industry saying, "Oh, no, but you can, but we will have to think up ways so that we do not have to give it to you."

Mr H. O'Neil: It would be interesting to know how you make out.

Ms Boughs: At Shell we have experience with the federal Access to Information Act. Upon receiving notice that they wished to disclose some information, once we managed to establish that the information was commercial, that it had always been treated in a confidential nature and that it should not be disclosed, there was agreement by the federal government that it should not be disclosed. The matter went no further and we did not have to show harm. That is one of the difficulties, from your Ontario legislation and the question you ask, "How do you show harm?"

Mr Dean: In order 87, which was given in the summer of 1989 -- it was a case, and it is public record -- involving the Toyota motor company and the starting of a business in Cambridge and somebody, again unknown -- you cannot find out who requested information from the order -- asked for information with respect to the calculation of interest payments for a Toyota Ontario facility, the size of the land, the building, the price of the land, the target investment budget, conversion rate from Japanese yen, the production targets, employment predictions, training grants, the infrastructure, information on taxes, the construction schedule and a number of items. Some of it would qualify under other parts of section 17, some of it would not, but the commissioner said all the records did not qualify for section 17 protection because the information had not been supplied in the way that the commissioner was interpreting the word "supply."

The commissioner did evaluate the harm test, went on to say he did not have to do this but he was going to anyway and discussed harm, and it became very apparent that on that issue, since it was a lost battle on the point of what "supply" meant, that Toyota just was not about to start putting on the record all the harm that was going to happen to it, which would then go out to more than just the party that requested it.

So how do you prove harm? It is hard. The owners of the information want to show everybody all the harm that is created, to give comfort to the requester that they are after the right stuff, that it will work if it is used against the owner. It is a touchy area.

The Chair: Thank you, Mr O'Neil. Did you wish the legislative counsel to get some information on that request?

Mr H. O'Neil: I would like that myself, yes. What happened in this particular one with the car plant?

Mr Dean: The information was released.

Mr H. O'Neil: All of that information?

Mr Dean: As far as I can make out from the decision, yes.

Mr Villeneuve: Do any of you from time to time request information? You have quite obviously provided information. Do you have occasion to request information, and what type if you do?

Mr Dean: IBM does not make a practice of using the freedom of information acts in the various jurisdictions. That is not to say that we might not, but it has not been our practice so far.

Mr Villeneuve: Could you comment on the fact that the person in charge of the freedom of information will also be the same person in charge of protection of privacy? Is that compatible, in your mind?

Mr Dean: No. Again, this was not what the association elected to talk about, so this is John Dean speaking and I think I am speaking on behalf of IBM, but there is a concern about the countervailing interests of privacy and freedom of information seen to be pulling and tugging at each other. They do not seem to ride naturally in the same boat in the same direction. I was alluding to that somewhat at my informal opening remarks when I said that business information, that property, use of it, the confidentiality of it was just as important to a business as information on an individual was important. Why have laws that protect the information relating to persons and not extend the same courtesy, if you like, to another legal entity, which is the corporation which has people working for it who could be hurt just as much as an individual could be if information is not properly released?

So I do not think that the two concepts ride naturally in the same boat and that is why our position, and it was the position of the association too, when the federal laws were on the discussion table, is to have a commissioner of privacy and a commissioner of information. I had the opportunity, on a couple of occasions, to sit on panels with Commissioner Linden. We got along, and he had a concern about this tugging and pulling because he was wearing the same hat, although I think he managed it very well. But it is no mean feat.


Mr Villeneuve: Do you see a problem with the freedom of information as it is now set up encroaching or infringing on patent and copyright areas?

Mr Dean: I have not given that that much thought. Off the top, patents -- if you want to patent something, that is tantamount to publishing it. In the trade secret area, that is a patent for an idea that could not --

Mr Villeneuve: You are locking it in.

Mr Dean: You choose to go the secrecy route and if you are successful in going that route you are able to keep a monopoly, if you like, on the idea for a lot longer than if you opt for the patent route, which will expire after the passage of time. So this subject definitely does have an impact on trade secrets. It may cause individuals to seek patent protection that might otherwise have gone the trade secret route because of a need to reveal the trade secret to government. If the trade secret is patented, then it cannot be used without the permission of the patent owner.

As far as copyright is concerned, I -- can you see it? I do not see a problem with it.

Ms MacCormac: One of the problems I foresee is that I know with respect to some of the information that we have and that we use in coming to grips with trying to develop a new plan is often we have -- we have in the United States our parent, a large mass of something like 2,000 PhDs, and they work for us and compile tremendous amounts of information for us. That is all information that is privately paid for and generated and if the documents that they create become public, then all the work and all the energy and all the effort that they have expended to create that is lost. I think that would be a terrible blow again to an organization, any organization, if it is trying to have a little bit of a competitive edge and trying to progress forward. To not be able to protect information like that would be an unfortunate situation.

Mr Villeneuve: Were you somewhat reluctant to provide the government with information regarding your new installation at, Maitland -- is it?

Ms MacCormac: Yes.

Mr Villeneuve: And it is great to see you come to eastern Ontario and thank you for that, but were you providing that with some hesitation as to the fact it might get into the wrong hands? I think I know why it was being requested and it is in the hands of government now. Would you want that information protected?

Ms MacCormac: You are asking me, did we, when we made our application for certificate of approval, hold back? I cannot say that we did that much, because there is quite a bit of it that we do not want disclosed, and one of the key pieces of information appears about three places in the document. I have been at several meetings where they asked us directly, "What is this?" and we have all hesitated with it. So it is a very significant piece of information and I do not know if we could have hidden it even if we tried. But we certainly did not try.

Mr Villeneuve: These are some of the problems that we have to address with this --

Ms MacCormac: That is right. This is an element of trust.

Mr Villeneuve: Exactly.

Ms MacCormac: I mean, we certainly stamped certain pages of this document "confidential" and we indicated we were releasing it for the purposes of this application and that we would hope the government would come to us and speak to us before they disclose it. So we are trying to be as honest and open as we can, but you can see that there could be a problem if --

Mr Villeneuve: Well, you certainly bring a different slant to the deliberations and the hearings here than most people have, because of the uniqueness of manufacturing. I certainly want to thank you for bringing that to it.

Mr Dean: At one point I said that IBM did not make use of freedom of information laws to get at data. We are a large company and there are laws all over the world. I really do not know. What I can say is that I am not aware of it and we certainly do not have any printed processes or guides instructing people on how to go about making use of freedom of information to get competitive information on those competing with us. We do have departments that work on gathering that kind of information and I am not aware of them using these laws to get that information.

The Chair: Carman, next question?

Mr McClelland: A question that you probably cannot answer specifically and that frankly I would not expect you to. But in a general sense, at least three -- and I am sorry, I do not know which company you are with -- but three companies in an international scope, and Deborah mentioned the competitive aspect of the business. What position and what kind of jeopardy would you foresee future investment in Ontario being placed in with respect to unhappy application, from your point of view, or unhappy -- dare I use the word "liberal" -- interpretation of the word "supply" in a continuation of that broad interpretation? Is it reasonable to presume that it could put us at a significant disadvantage with respect to future investment?

Mr Dean: I am not aware of any other jurisdiction that puts that standard on the term "supply," so it is not going to cause investment to flock. What it is going to do is make business more cautious about what it gives, particularly in the mandatory area where there is a statute that requires it, but even in the voluntary where you try to work to put a deal together that is in the interests of Ontario and the consumers and business. But the tendency, and it is human nature, I think, is to err on the safe side and to only give it if you have to, if negotiations are stalling.

Having that kind of an interpretation creates an element of uncertainty which I do not think is going to do Ontario and business in Ontario any good. We would like to know that "supply" has the meaning given to it in the Oxford dictionary, if we could get that.

The Chair: Are there any further questions?

With the permission of the committee, I would like to follow up on a point of order and ask Mr Dean a question, if it is permissible. You indicated, I think in answer to a member, that there were organizations in the United States that compiled information on firms and were in the business of selling it. Do such organizations exist in Canada, and if so, does the federal freedom of information act address those firms?

Mr Dean: I have knowledge that there is at least one individual in Ottawa who is doing this. Does the federal legislation address it? No. It is a legitimate business. By addressing it, do you mean having some way of stopping it or trying to --

The Chair: I am just wondering --

Mr Dean: No.

The Chair: Does that particular company sell trade secrets or deal with information, points that you raised here today?

Mr Dean: No. They do exist in Canada. It is just in its infancy here. It is in its infancy and there is a business opportunity that is not against the law in our jurisdiction or the federal jurisdiction.

Ms MacCormac: I think what they are doing is they look very enthusiastically. My sense would be for the government to open the floodgates as far as possible so that they do not have to do anything illegal to get this information; they just have to be very, very persistent.

Mr Dean: One-stop shopping. In many instances you can dig the information out. It is hard to get at, but it can be got. But it makes it so much easier just to go to the one place and pay for it. It is there.

Mr H. O'Neil: It would be interesting, Mr Chairman, just for our research people too to just give us a little bit of an insight into something like that.

The Chair: Okay. Our counsel will get that information for us.

Ms Boughs: But to answer your question about the federal legislation, trade secrets are easier to protect under the federal legislation than they are in Ontario. For example, the public interest override does not apply to trade secrets and you do not have to prove harm to protect trade secrets. Protection is given as a right.

The Chair: Thank you, Mr Dean, and members of the Canadian Manufacturers' Association's committee on the freedom of information. Thank you for coming this afternoon.



The Chair: Our next delegation was to be from Mohawk College but they have cancelled out this afternoon due to heavy snow in the Hamilton area. We have moved up the next delegation, from the Radio-Television News Directors Association of Canada. I would ask those witnesses to now come forward.

Thank you, gentlemen, for coming here this afternoon. If you could state your name and what organization you represent. We have some extra time this afternoon, so we are a little flexible if you want to go a little longer than normal in making your presentation.

Mr Clarke: Thank you very much. Good afternoon. I am George Clarke, the president of the Radio-Television News Directors Association of Canada and also news director at CFPL television in London, Ontario. To my immediate left is Gary Ennett, vice-president, radio for RTNDA Canada and news director at CFPL radio in London, Ontario. To my far left is John Hinnen, immediate past president of RTNDA Canada and vice-president of news at CHFI radio here in Toronto.

We have a short written presentation, sir, before responding to questions.

The Radio-Television News Directors Association is a national association representing news directors at most broadcasting stations in Ontario and across Canada.

Radio and television news operations tend to report what is currently happening in a given community. We do not deal extensively with historical records or government files that might contain sensitive personal information. Our primary mandate has evolved to one of reporting on matters of immediacy. Much of our time is spent covering sudden developments such as major fires, shootings, robberies, serious traffic accidents etc, in which the identities of individuals involved are a central part of the story. Unfortunately, because of this legislation which now can restrict the information flow, stories about such incidents become shallow and incomplete. It is almost as though they have become censored to a degree at the source.

We feel strongly that this act should not apply to immediate events. The RTNDA and its members know on a firsthand basis what types of things the community wants and expects to hear about. Where are the fires and the shootouts? Who has been charged and when? These are just a few examples of the types of information that civil servants, we feel, should not be given exclusive control over.

We are not talking about documents, custody of records, invasion of privacy. Our news reports deal with hard information about matters that individual members of the community must be able to know in a civilized society. The kind of information that we are addressing is not gathered by government as the result of receiving confidential information provided on that basis.

The access to information regime established by the act under review by this committee is designed to deal with documents and records in the custody of government. It has an information commissioner, an appeal process with some form of judicial review. We ask, what does that have, any of it, to do with a fire raging at Yonge and Bloor? People living and working in the area will immediately want to know exactly where that fire is, whether anyone was hurt, if so, who was hurt; and if a person is subsequently charged with arson, people will want to know who was charged. It is not good enough to report that a 30-year old Etobicoke man is in custody. People want to know, and in a democracy, we feel, have a right to know, his name.

The basic questions people have are, "What has happened?" and "How have the laws been enforced for the safety and protection of members of the community?" More importantly, if the police are not bound to disclose whom they have charged, then there is no real element of accountability. You may never know whether your relative has been arrested and is being held. The relative may have been taken to some precinct and brought before some court not in your particular area. How will you ever find out about it?

Fortunately, we have a rule of law and well-run police forces that attempt to safeguard the constitutional rights of the citizens of this country. Public scrutiny of the administration of justice has been held by the courts to be its most fundamental protection. Without public scrutiny there can be no justice. How can you respect a justice system whose basic tenets can include secrecy, anonymity and facelessness?

Mr Ennett: Since the start of this year, ladies and gentlemen, the RTNDA has documented at least a dozen cases where basic information has been withheld by the authorities and, in each case, no compelling reason was given for the suppression. Obviously we do not have the time to detail each incident, but we would like to highlight the most shocking examples of what we regard to a degree as censorship.

In Sudbury last month, a man with an unloaded gun was shot and killed by a police constable, and officials refused to release the name of the shooting victim. The senior investigating officer complied with a request from the man's family to withhold his identity. This was not a case of local authorities not understanding the law. In this case, the decision to withhold the name of the shooting victim was reportedly made by a senior investigator with the Ministry of the Solicitor General's special investigations unit, based right here at Queen's Park. This did not stop the Sudbury Star newspaper from identifying the victim. By digging through the paper's obituaries, we are told, they managed to connect the death announcement with the shooting.

Some of you might say, "Well, they did get the name." But what kind of a justice system, we ask you, forces reporters to comb through the obituaries for leads and call funeral homes to confirm what investigators should have provided in the first place?

Another example, this one from the London area: In January, there was a serious accident on the 401 east of the city. Two children were killed, and their mother was seriously injured in another median cross-over collision. The driver of a transport truck that allegedly struck one of the vehicles from behind was charged with leaving the scene of an accident. The OPP detachment in London refused to release the name of the truck driver some eight hours after the fact, even though the man was in custody, the reports had been completed and he was due to appear in court later that morning. The media were told they would simply have to await the man's appearance in court in order to learn his identity.

Prior to the implementation of the Freedom of Information and Protection of Privacy Act, this type of information was routinely released by the OPP and most other police forces in the province. Now it is suddenly regarded as top secret until the suspect appears in court. Then it magically becomes public information. Why suppress information on the police blotter that is eventually going to be completely public in court? It just does not make sense to us.

The RTNDA appeared before the legislative committee studying the proposed Police Services Act last summer. We made essentially the same argument then. We intend to file with this committee a copy of the presentation we made at that time. Now is an excellent occasion to have legislators carefully consider the ultimate importance of the view we expressed then.

It is our recommendation that the act under review should be amended to ensure that the names of persons charged with offences, or information concerning incidents where persons could reasonably be expected to be injured, do not fall within the exceptions from the duty on the government to grant access to the information. In fact, we believe there should be a positive duty on the appropriate government representatives to make such basic information available on an immediate basis.

When the current act was being drafted, one of the chief motivating factors appeared to be the protection of victims' rights in the province. But the application of the act has brought this response from the head of the organization known as Victims of Violence. Carol Cameron fears that keeping the identity of crime victims anonymous will "desensitize" the public to crime. Noting that the identities of young offenders are already protected by law and that courts can issue orders protecting the identity of sexual assault victims, she says victims have no reason to fear media coverage; quite the contrary. In her words, "I think the media have helped. We've been able to put a face on crime." And she added, "My biggest fear is when the identity of the victim is not known, what in the heck does it mean to anyone?"

Who does this law really protect? If it is to protect victims, then obviously it is not doing what it was designed to do. If it is designed to protect the rights of the accused, there have been serious doubts raised about that as well.

Experienced criminal lawyers who appreciate the intent of the legislation -- and we understand what is attempting to be done here -- still have grave concerns about its implications, its application, in a democracy. Veteran defence lawyer Norm Peel of London accurately predicted that this legislation and its application would create a real problem in the community and would affect the public's right to be fully informed.

John Getliffe, the immediate past president of the London Criminal Lawyers Association, says even though the motives may be laudable, he cannot support any legislation that imposes any type of secrecy. Getliffe says: "Not releasing victims' names is a difficult one for me to follow. It is very dangerous in a democratic society."

If it has been designed to foster more harmonious relations between police and the media, this act obviously has backfired in that area as well. We ask, just whom does this law serve? Because it is so loose and can be interpreted in so many different ways, it is now exacerbating relationships between police and the media across the province. The police who have to administer the act have a difficult job on their hands. We do not mean to sound critical of the police in general. We understand the situation they are in. They are really caught in the middle.


From the looks of this legislation, we feel they should be taking legal advice every step of the way. But we have to ask, what kind of drafting is that? The exceptions to the rule of access are so general that it is only prudent and sensible for civil servants to err on the side of denying access, as the gentleman from IBM said just moments ago. The inclination to withhold information is even greater when there is no penalty for denying access to a record that should really be made public. We feel this is one loophole in the law that must be seriously addressed.

A few moments ago, we cited some serious cases of suppression that have occurred since the legislation went into effect. Other scenarios have almost been laughable. For instance, in Owen Sound last month, fire officials refused to give the address of a house fire or the name of the owner citing restrictions under the freedom of information act. It was just incredible. The fire marshal's office was asked to investigate this particular incident and, lo and behold, a few days later admitted the information should not have been restricted. But these kinds of incidents are happening every day across the province. There is widespread confusion. Information chaos is how many of us perceive it.

The confusion even extends to the school system. In London, the board of education says the act prevents the media from interviewing students on board property without parental consent. But consider the practical implications. Suppose an assignment editor wants to interview students in the classroom during a discussion of the Persian Gulf war, and we have seen stories of this nature done on American television quite freely. As we understand it, a battery of letters would have to be written soliciting consent. Six weeks later, the responses might finally arrive and the editor would then learn whether or not he could proceed with the idea, assuming it was still newsworthy. By then the war could be history. It just does not have any real, practical value with the structure that has been imposed on the civil servants to carry out.

Consider, with this same area with the school boards, the implications for the sports media that cover high school athletics. The media can interview the high school hockey star because his games are played at an outside arena, but the basketball star is off limits because his games are played on school property. You just cannot win with this act.

But on the serious side, how in any stretch of the imagination can this be called an access system when one of its major characteristics is to deny or frustrate immediate access? If it is to be a genuine access system, we submit the exceptions to the rule of access should be profoundly limited and clear in their application.

Mr Clarke: Today we are expressing the concerns of news directors from Ontario, but as a national organization we can tell you that this troubling piece of legislation is creating anxieties for news directors across the country. Our counterparts in communities as far away as Yellowknife have told us that the governments of other provinces and territories are watching developments here very closely, with an eye to implementing similar legislation in their jurisdictions. We feel it would be a terrible mistake for this law in its present state to be copied in other regions of the country.

Radio and television news directors across Ontario are seriously concerned about this act because it makes us unable to provide the type of information expected by society. We are also concerned because it is destroying our attempts to maintain good working relationships with municipal authorities that we have spent years trying to achieve. Surely the law was not designed to put the media and those who enforce municipal laws in opposing camps. Yet to a degree that is exactly what is happening.

The RTNDA is extremely concerned about the confusing and inconsistent application of the freedom of information act and its negative impact on freedom of expression in this province. Consequently, we are willing to voice our concerns before any body or committee that will consider amendments to that act that will restore ready and uniform access to information that has traditionally been regarded as being in the public interest.

The Chair: Thank you. I would just further point out that this committee is looking at the Freedom of Information and Protection of Privacy Act, 1987, the provincial act. We have broadened the scope a little bit on the committee to include briefs such as yours here today, but basically we are looking at the provincial act, taking into consideration some of the points that have been raised in relation to the Municipal Act.

Mr Clarke: And our feeling was, sir, in making a presentation here today, that although now we have new guidelines and annotations in effect, the law basically is the same as the 1987 act.

The Chair: Thank you. We will begin with our questions. Mr O'Neil.

Mr H. O'Neil: I can see from your point of view that you come as news directors and you want to get whatever news you can when you can get it, get it out to the public and make sure you share it. But I wonder if you, in a way, do not have a little bit of a conflict of interest, considering where you are coming from.

I guess one of the cases -- and I could refer to a couple here that you mentioned -- about the truck driver: He has been taken in and he is going to be charged, but you want the information right away when he has been picked up. What happens if the charge does not follow through, in other words, that it is somebody else or that something happens in between and you have put that across your radio stations and you malign this individual or this person?

I think of another example. In particular, one case I will never forget as long as I live is the Susan Nelles case, where that person was dragged in front of the newspapers and the radio stations and right across the province of Ontario. I know her family. I know what it did to her. I know what it did to her mother. I know it killed her dad, possibly her brother, just because of the publicity that was given to a person who was eventually cleared.

You talk about wanting the right to go on to a schoolyard. Adults have certain protections as to being questioned when they are going to be questioned in certain cases. They have advice for people who go there to protect what they are going to be questioned on. Some of your people are very skilful in the way they ask questions and the way they get things out and sometimes they are correct in what they get, other times they are not.

I would like to think what we are dealing with here today is there not to serve you or to give you news items, but to protect the individual or the person. Then, if they have done something wrong or something like that, okay, maybe it should be put out to the public.

But I am saying to you that there are many cases and many times when maybe some of your people do not use their best judgement in what they put out or what they use. I would ask Gary there. I do not know whether you have a daughter or not, but if you had a daughter who was raped, do you want that information to go out over your radio station within a few minutes?

Mr Ennett: Absolutely not.

Mr H. O'Neil: Maybe these are the extremes.

Mr Ennett: I think you raised a good example. We have never used the names of rape victims. Society has simply found the mere suggestion of it abhorrent and we are sensitive to societal concerns. So for that reason we have never been required by law to restrict that information. It is just a given that any credible news operation has enough ethical sense not to use those names, and that is what we are suggesting.

Mr H. O'Neil: I would hope that what you are saying is right, but I am saying to you maybe that does not always happen. You have competition among your reporters, or the news people do among their reporters who are going to go out. In a lot of cases their stories will not be covered unless they are sometimes sensational, and hopefully the majority we deal with, whether here or anyplace else, are very respectable people but that does not always happen. It may be that one case or two or three cases that give a bad reputation to some people.

Again, there have to be certain safeguards. What we are dealing with may not be perfectly right, but I am also saying that sometimes you people are not always the best either.

Mr Ennett: I agree, sir. Obviously, no profession is perfect and every group has its bad apples. We are not for a minute going to stand here before you today and say we do not have members among us whom we feel a degree of disrespect for from time to time.

There is never total unanimity within the industry on what is the proper practice, but what we are suggesting is if there are indeed legitimate concerns, if there are specific problems such as naming certain types of victims, please approach those specifically through legislation that deals directly with that subject instead of taking a blanket approach where you say, "This office will be able to determine on a day-by-day basis," or "Police will have to use their best judgement on a day-by-day basis," to determine what is released and what is not. We would rather you said: "This is an issue in society right now. We have support from the electorate to take steps to restrict the release of that information and deal specifically with that one area" -- one at a time, just as the Young Offenders Act restricts us from reporting the names of young offenders. To us, that is a far more logical and relevant way to deal with legitimate societal concerns.


Mr O'Neil: I guess another concern I have too is that just because people are charged, that does not mean they are going to be convicted and again, I am always concerned, because I have seen many cases too where it has been blown across the newspapers or radio stations or TV stations that such-and-such a person has been charged. A lot of people take for granted that because they have been charged, they are guilty. They assume that. Sometimes the damage that is done to an individual -- and I know what you are going to say and everything else, but on the other hand -- I hope it never happens to you. I hope you are never charged with something and subsequently proven innocent, because what you may go through, and I quote the Nelles case again, for a week or 10 days or months, I hope it never happens to you.

Mr Clarke: Mr O'Neil, I agree with you. I hope our police forces do as we hope they can do in every case and charge the people they have gathered information on who they feel committed these crimes, and that they have enough information before they lay that charge. I hope it is valid and I think we have to trust our police authorities to do that, but once they have --

Mr H. O'Neil: There is also a responsibility on you people to a certain -- and I do not know where you draw the line.

Mr Clarke: Once a citizen has been removed from the street and he has lost his freedom and he is now incarcerated by the authorities of the state, someone should know that. Someone should know he has just been deprived of his freedoms. We think that information should be available to the public, that X is no longer walking the street, that he is now behind bars and for this reason. So if people know that is wrong, they can come forward and say so.

Mr H. O'Neil: Well, I just hope the particular person that is done to -- I guess I have some strong feeling that way. I wonder sometimes, and I know you certainly would not agree with it, whether this should be public until a person is guilty. I know that may be a really radical approach, but again, there are quite a few cases where people are charged where they are found not to be guilty too. Sometimes the label that is put on them can do a lot of harm, not only to the individual, but to family members and other people connected. Again I relate to the Nelles case.

Mr Clarke: I guess I am just saying, are we dealing with the problem or are we dealing with the messenger of the problem then? If the problem is that an incorrect charge has been laid, and I believe if we use the Nelles case as an example -- actually, I guess the law did change as a result of that case -- she can find relief, sue the crown. But that was perceived to be the problem at the time. In dealing with that case, what the media did with it in particular, it was the way the information was released and what information was released and how the case was proceeded with. I know if I were at the tail end of it I would be saying exactly what you are saying, no question.

Mr Hinnen: Mr O'Neil, one other point I would like to make is that when you talk about the fact that the truck driver may not be charged, there are laws right now that deal with libel and slander, that if that individual is not charged and you broadcast that information, you are leaving yourselves open.

Mr H. O'Neil: Why would you ask for the information beforehand then, before he has been charged?

Mr Hinnen: But the information we want is when a person is charged.

Mr Clarke: Because he has been charged; they have had a justice of the peace and he has been sworn. The charge was sworn while he is in custody. The JP visits cells on a Friday night.

Mr H. O'Neil: If I owned that radio station, I would be very careful about putting it out before --

Mr Clarke: Broadcasting anything where a charge is not sworn, and that is what we ask our people to do. That had been done in this case, but the decision was made still not to release the information until Monday morning in court and that is where it just became a frustration. The charge had been laid.

Mr Hinnen: The other point I would like to make is that when this law, when this particular piece of legislation was first drafted, it was not part of the intention to have this incorporated as part of the legislation, that the information would not be getting out to the media. I sat down on a couple of occasions in group sessions with Metro Toronto Police Chief Bill McCormack, who feels that this is really hindering relationships that the police are trying to build with the community. Quite frankly, we see ourselves in this news industry as representing the community and trying to make sure it is made aware of what is happening in the community. I do not think we are looking for any special privileges here whatsoever. We are just trying to find out what the public really has an interest in knowing and what it has a right to know. We do not want to know anything more than what they have a right to know.

Mr H. O'Neil: Again, let me just use one other example. It may be a common one that I have gone into in one particular case, where an elderly person who was quite a good driver but was in his late 70s -- but again, his licence was renewed -- was charged with a very minor charge of failing to stop or something like that, and this was broadcast in the area -- a very nice person. Again, it was put out over the radio stations and newspapers, and just the embarrassment something like that causes -- when a person is charged with something, the right to be broadcast is there, but you know, sometimes a little bit of common sense is needed too with an elderly person or somebody. Again, how can you do it for one and not the other? But I guess it comes back to the comment you make, some sort of common sense on the side of the people who are running a radio station or running a local newspaper or something like that. It is not that common sense is not always used.

Mr Hinnen: Generally speaking, we think we have established a pretty good track record, as far as broadcasters are concerned, when it comes to showing common sense. One of the things we have found with this legislation is that it has taken that right away from us and it is giving it to the police officers, in this case, and preventing them from giving out any information. There is almost carte blanche right now that no information is given out whatsoever because that is the easiest thing to do. It is the safest thing to do, as opposed to giving out information and then possibly facing some type of trouble down the road.

We think there has to be some discussion on that, how we can best come to some agreement in terms of how this whole situation should be discussed and rectified. I know we have had discussion with our group that we are very prepared to sit down with members of this committee or any other committee to try to come up with ways that might better the relationship certainly between the police and the media and make better all other parts of the legislation that need to be looked at.

Mr H. O'Neil: Sorry, I took --

The Chair: That is okay. Because we have a little extra time this afternoon, I have allowed 15 minutes for each party to ask questions. If any other member wishes to ask questions beyond that, then I will establish a speakers' list after the rotation has been done. Margaret.

Mrs Marland: Thank you, Mr Chairman, I am probably in total disagreement with the former speaker. I have been in the Toronto area only 35 years, but I think the fact that whenever we have this discussion we bring up the Susan Nelles case tells us a great deal. I am not commenting on the Susan Nelles case. I am simply saying, is it not interesting, in the last 25, 30, maybe 35 years, that is the case that is brought up? And yet every day, when we turn on our television sets and radios, we probably hear a dozen cases, new cases, and when we turn on the television again at 11 o'clock before we go to bed or we are just getting in the door, there is sometimes more news and there are more names than there were even at 6 o'clock.

I do not think I feel the same way about the United States' broadcasting models, but I think the business of broadcasting in radio and television is very responsible in Canada, and I am speaking about reporting. I think we have a very high standard, particularly in Ontario. I wish we had as high a standard or as large a responsibility to the public, in deciding what kind of entertainment and videos and movies the public saw, as the kind of responsibility I see our radio and television and print media demonstrating in Ontario today.


I happen to think it is important that we know who has recently been put behind bars, because we may have missed somewhere along the way -- in a week or 10 days of newscasts, we may have missed the crime or the event. Eventually we learn that somebody has been charged, but we may not have heard about it at the time that it happened. Very often I am sure the police find that when the charges have been laid and the information is out there on the street that that person is now behind bars, that is when they get more information coming forward. People start to remember that maybe they did see that person hanging around a service station or acting suspiciously in some other location.

So I think it is important that we know what is going on in our community, and I would go as far as -- and I speak as a mother and I also was on the school board in the early 1970s, so I have experienced this business of whether or not we intrude upon children in their school communities, because they are captive in their school community. Do we get them alarmed and do we cause more problems by doing that? Personally, I think that depending how it is done -- and there again, I have not had any bad experience about how it is done. I live in the ninth-largest city in Canada and we do not even have a daily newspaper, so we are very dependent in Mississauga on the Toronto media and the television, but I do not have any experience about it being badly handled in terms of the school community. I feel that to go into the schoolyards with the permission of the principals, which is the only way it would ever be done, means the judgement at that point is being made by the school principal. And I think that if that judgement is being made by the school principal, it is obviously done with good judgement.

I feel that if there are violent crimes taking place -- and I said this when we had a representative from Metro Toronto Police in front of this committee two or three weeks ago when we dealt with this matter, and we also had one of the commissioners from the OPP. I said, "I want to know where these crimes are taking place, because I want to be able to protect myself and my family." Or if it is not where I live but where I know there are friends and so forth, it is just a ripple effect. If that particular park area has become unsafe because a child has been attacked or a woman has been attacked, the public has a right to know. How absurd it is if it gets to the point where we say, "Well, there was a burglary somewhere in Mississauga South last night and they took thousands and thousands of dollars and it was from a private home." Suddenly people start thinking, "I wonder if it is my area that has suddenly been targeted as a break-and-enter area."

If you live next door to that person or on their street, you are going to know sooner or later where it is and where it was anyway. So I do not know what it is or who it is we are trying to protect by being very strict about this information coming forward. I think if we are going to say that it should not be used, then we have got to have a very good reason for not using it, because I feel the advantages outweigh the disadvantages. I think if we have irresponsible broadcasters who do not use the judgement and the tact and the sensitivity as well, if we have examples of that kind of thing, then we have an argument against releasing this information. But I am quite sure that the owners of the stations will let those people know and will let them go long before we would even hear about it, because that is not the model of broadcasting that has been going on in my experience.

I think that if we are concerned about sensitivity we can almost go to the other extreme, where we become desensitized because there is no face on that crime, there is no person. I cannot identify with a mother whose daughter was just raped as I would if it were my daughter, because I am not going to know about that crime until that person is, what, found guilty? That is just not the way it works. I am sure that the police and everyone, particularly the police, are going to be looking very closely at that case which now has been approved by the Supreme Court and the appeal court of the young woman who has been given a right to sue Metropolitan Toronto Police for not warning her about the crime that went on when she was the fifth rape victim in one year. Was it 1986 to 1987? I think she was the fifth rape victim, whereas she might not have been a victim at all, nor might there have been a number three or four even, if that community had been warned about the first one or the second one.

So while I am not suggesting that we have to be alarmist with reporting crime -- and I do not think that is what we are dealing with here -- it is an awful thing to have to describe it as a public service, but in fact it is. It is something we have to know, and we have to know in order to protect ourselves. I really do commend the job that people within your organization do, and frankly, I wish that in some instances the print media would perhaps take a page, literally, out of your books. They seem to go much more for the gory photograph and the on-the-scene shot of the worst kind than I ever see on television. Of course, on the radio I can conjure up my own photograph.

I was just going to say one other thing, Mr Chairman. I remember when -- I cannot remember the year, but I think it was about 1976, and there was that terrible shooting at the high school in Brampton. I guess you were not in Brampton then, Carman. Margaret Wright was the teacher who was shot, and there were 12 students injured, and finally the young student with the shotgun shot himself. I went all the way to a tiny, tiny little village in the St John River Valley in New Brunswick to the funeral of Margaret Wright, and it took me four hours to find where she lived. The service was in a 150-year-old church, and the church was just big enough to contain the family and a few relatives and myself.

When we came out of the church and went to the graveside, which was right in the churchyard beside that church, and the minister was giving the final prayers and it was, you know -- there was dead silence, as you can imagine, way, way out in the country. I heard this funny whirring sound, and I could not figure out what it was. Finally I looked, and I could not believe what I saw, because there was this man kneeling down, hiding behind the tree, literally hiding with his camera. I was so mad and so protective of this family anyway because of this violent crime that I went over to him and I said, "What do you think you are doing?" He said, "Oh, I am just doing my job. I am just doing my job." I said, "Where are you from?" and he said, "Oh, I am from the Toronto Star."

I could not believe it. I thought, here is someone who is representing the Toronto media way out -- far, far from any even medium-sized town -- way, way out in the country in New Brunswick. And I thought, is that what reporting is all about? Needless to say, I wrote to the publisher and made a big fuss about it when I came home. Sure enough, the day that I came home, there on the front page was the photograph of Margaret Wright's husband at the grave with the casket and everything and all part of that scene. I thought, does the public really want to see that, and in seeing it, are they better protected? The answer to that is no.

But as to the kinds of crimes that we are talking about, that we need to know, that I think are part of the discussion today, the answer is yes.


Mr Hinnen: Mrs Marland, I am not here to protect -- I am certainly not trying to speak on behalf of the Toronto Star, but I do want to take a page out of our book and that is that we have a code of ethics that we abide by with the radio and television news directors. The code has 11 articles, and article number 4 reads:

"Broadcast journalists will always display respect for the dignity, privacy and wellbeing of everyone with whom they deal and make every effort to ensure that the privacy of public persons is infringed only to the extent necessary to satisfy the public interest and accurately report the news."

So I think to a large extent we have addressed a lot of the concerns you have. I agree with you; I think there is a great need to know. Speaking as a citizen now, as opposed to a news director, we had a break-in down the street from us about three months ago. We were advised of the break-in through the Neighbourhood Watch program, a very successful program that relies on getting information such as this. As a result of that, we were able to take some precautions to try and make sure that we were not going to be victims when it came to a break-in, and as a result we took some precautions in our household. Without that information, we would not have been able to do so.

I think that again portrays the fact that it is very important to let the public know of events going on in their vicinity. "In their vicinity" could mean anything from in Toronto to in Ontario. Possibly even to Canada, but certainly very much in terms of what is going on in our own neighbourhoods. One of the things we wanted to be able to do was to make sure that we can provide that information as best we can as broadcasters.

Mr Villeneuve: Thank you, gentlemen, for your presentation. Certainly the electronic media are some that have a great deal of power and, I believe, you were the first to bring to the fore the fact that there was a problem with, as you see it, the legislation that was being brought forth.

Can you tell us, do you see a different way of handling from, say, the OPP standpoint as compared to that of a municipal police force? Can you give us a little bit of insight here? Is there a different interpretation and why is it different, if indeed it is?

Mr Clarke: I think, if I can speak first to this, that we have found that it varies from jurisdiction to jurisdiction, and that is the problem. There is no even application across the province. Each person interprets the guidelines to best fit his or her own situation. As to the incident Gary referred to on Highway 401, prior to 1 January that information was available, even though the OPP has been under the jurisdiction of that act for the last three years, but after 1 January when it came to apply to all municipalities, it appeared that the OPP were now trying to line themselves up with what municipal forces were going to be doing and they changed their method of releasing information. But I must say that it depends on each jurisdiction what information we are liable to get or not to get.

Mr Villeneuve: Well, certainly the public's appetite to know is tremendous and I think you are doing a remarkable job, because I am sure there are times when you sit in the newsroom and say, "Do we or do we not go with this?" It is always rather sad that news is 90% tragic, unhappy and what have you. We seem to think at times there is a little bit of good news here, but it never gets reported very much, or if it does it happens only as a fill-in. I think somewhere we will have to bring some uniformity to this legislation, because the public's appetite, as I said, is tremendous, and you people are there to fill it. If you do not do it, quite obviously someone else will do it.

Mr Clarke: I think that is exactly the point. If a problem is identified and perceived, then let's deal with that specific problem instead of having legislation that unfortunately from where we sit has created many more problems because of its uneven application throughout the province.

Mr Villeneuve: I think the message is clear, and certainly as we report to the Legislature we will take those things into consideration. Thank you.

Mr Huget: I would like to pick up just a little bit on a question by Mr O'Neil. I think we agreed, for example, that the name of a young rape victim should not be released, and I think your response was that all of us are ethical and sensitive in those areas and we can be relied upon to exercise those ethics. I think you have just mentioned the broadcast code of ethics, its 11-point program.

I guess what I am saying is, as there is sort of not general understanding of this privacy situation we are in and people applying it differently, do you see a problem in the application of different ethical standards, for example? I think the same problem exists in terms of understanding the privacy issue. There may be another problem of not everyone having the same ethical standard in terms of releasing information to the public.

I am quite sure your ethics are very high, and by and large that goes for the majority of your people, but where that does not happen, the resulting damage can be quite severe. I guess what I am saying is, how do we standardize the ethics approach, and is there a way that your industry can police its own ethics satisfactorily to eliminate any of these potentially very damaging situations?

Mr Clarke: Sir, to respond to that, our code of ethics has now been adopted by the Canadian Association of Broadcasters in its code of standards that it has offered to the Canadian Radio-television and Telecommunications Commission. As a result, now, on each station's application for renewal of licence, each station owner will be asked if he or she abides by the code. The code includes the RTNDA code of ethics, so that if there is performance which does not meet the standards of that code, the complainant, the CRTC, can have that raised at licence renewal. So it is now, I would think, in the interests of the owners and general managers of the operations that their employees live within the restraints of the codes, obviously.

Mr Hinnen: Furthermore, the CAB, of course, represents all of the owners of broadcast outlets in this country. They have also established a standards council, and that standards council is to a large extent an ombudsman where people can go and apply if they have concerns relating to anything that is broadcast on radio and television. So it is being addressed, both by the owners and by an association such as ours, where we try to make sure that people are responsible.

If there are instances where, you know, we come to some agreement that maybe some areas need to be addressed, as in the case of a sexual assault victim, and maybe those things should not be broadcast, then maybe that should become a law. Those are things that need to be talked about and addressed. Right now, as has been mentioned by Gary, we cannot talk about the names of accused when it comes to young offenders, and we abide by that or face criminal prosecution. We are prepared to deal with the laws that are on the table, but this one becomes a very unworkable one because of its scope and because of the fact that it basically prevents us from getting information at source.

Mr Huget: Are there any other situations that you can see where it would be in the public's best interests to treat information the same as you would, for example, a young rape victim or something like that? What is your sense -- are there other things that should be treated as sensitively? I am trying to get a handle on what you perceive as the limit.

Mr Hinnen: I do not think there are any rules or regulations when it comes to that, but I know that at our radio station we have a great hesitancy in mentioning suicide victims, for instance. The reason for that is that from a legal standpoint we may leave ourselves open if in fact we go on the air and say somebody has committed suicide. So we try to be very careful, and oft-times do not mention it, because of the nature of that kind of a crime. But to suggest that there are others of any wider significance, I just cannot say at the moment.

Mr Clarke: I think suicide is a key one that, again, I think you would find a universal practice in dealing with. Usually it is not reported unless it is unfortunately done in a very public fashion and becomes suspected, and at that point you have to explain what has happened. But ordinarily suicide is just not dealt with.

I think sometimes what is forgotten is that we, too, are members of our communities and have to live by our communities' laws and concerns. They affect us just as much as they affect everybody else and we want to be dealt with as we would deal with others.


Mr Huget: Last question, Mr Chairman. Are you familiar with any broadcasting outlet that has had its licence revoked for violation of this code of ethics or any employee who has been removed from employment over violation of the employer's code of ethics?

Mr Clarke: There have been instances in the last two years before the CRTC where broadcasts that I would suppose would be more pejorative towards a particular ethnic group than actually breaking the law have caused severe reprimands from the commission and, in one case, a reduction in the amount of broadcast advertising available to that company for a certain period of time. That is the only one I can think of specifically off the top of my head. But I think as broadcasters we recognize we are licensed to do our business and that licence can be attached or withdrawn by the regulator for cause.

The Chair: Thank you. Any further questions? Mr Cooper.

Mr Cooper: To continue on a little bit about what Mrs Marland was saying and what Bob Huget was saying, Mrs Marland was talking about generalities. As a block captain for Neighbourhood Watch in my area, I understand the importance of people knowing exactly what is going on in an area. That is why these Neighbourhood Watch areas are kept down to either half blocks or full blocks depending on the size, so you know the general area. But I do not see the necessity of actually telling which house was hit by the crime, whether it be a burglary or a fire, and I also do not see the purpose of naming names of accident victims.

You talk about being immediate and how you are the messengers, but I do not think I would like you to be the messenger if it was a family member or a close neighbour being killed in an accident. I think that is why -- when you talk about competing between the newspapers, the newspapers usually have about a two-day follow-up, especially if you talk about things like motorcycle accidents. You can go and do the motorcycle accident but you cannot name names, because I think that should be protected and the family should be notified first. I do not think it should be seen on the 11 o'clock news.

What I am seeing now on the 6 o'clock and 11 o'clock news are close-ups, and sometimes you are getting licence plate numbers in these pictures. I do not really think that is appropriate that these things should be coming across the news, especially if I am watching it and I know it is my next-door neighbour's licence plate number. I do not think that is the right way to inform.

Mr Clarke: Can I respond to that briefly? I think our code deals with this specifically, but I must admit it is broadcast practice again, in an agreement with the police forces, that we will not deal with victims of accidents until next-of-kin have been notified. That has to be a precondition to us receiving information, and that is the first question we do ask: "Have the next-of-kin been notified?" Because no, we do not see that as our role either. It is not our role. It is our role, we feel, to inform the community as to the state and severity of the incident that has occurred, but it is not our role to advise people that they have lost a member of their family in a traffic accident. I will not rechew it right now, but I know that it is a major tenet of our business. That just is not done.

Mr Hinnen: In fact, I can also tell you that there were many occasions where we have learned of the name of the victim prior to the release by the police. We will call the police to confirm the name and they will tell us that the individual's family has not been notified, at which point we automatically withhold that information. That is our company policy. We do that; we withhold the information until next-of-kin have been notified.

Mr Cooper: Does that also include fires, residential fires, where you would not give the specific address if there was a fatality?

Mr Hinnen: If the victim's family had not been notified?

Mr Cooper: Yes.

Mr Hinnen: Very much so.

Mr Clarke: The exception to that -- and it would have been interesting talking about it about three years ago when originally legislation like this was being looked at. If we showed an office tower where a shooting incident was taking place inside -- now, there are perhaps 5,000 people; I do not know how many thousand people you can put in a busy office tower -- what is our responsibility at that point? Do we explain what is going on and how many people are at risk? We do, I must admit, deal with these questions ethically in our meetings at all times to see how best we can respond to situations like that. I think, and I thank Margaret Marland for mentioning it, that our historic record has been a reasonably good one; a very good one, I would say from my biased point of view. Again, until we hear of specific incidents rather than hypotheses, we are questioning why a law is there to deal with it.

Mr Cooper: Basically what I was saying was that before this life, I used to be able to watch news. l was watching the American news occasionally, and you would actually see a bodybag coming up and maybe naming the victim and I am really glad that the Canadian TV is not following that example. I would not like to see it moving closer to that.

Mr Clarke: I do not see that happening.

Mr Cooper: Good.

The Chair: Any further questions? No? Thank you, gentlemen, for coming along and representing the Radio-Television News Directors Association, and for giving your brief here this afternoon. It is not very often the politicians get an opportunity to question the media, but this afternoon was one of those occasions. Thank you, gentlemen, for coming along.

Mr Clarke: Thank you.

The Chair: Is there any other business before the committee? Mr Frankford.

Mr Frankford: Back to the questions I raised about death certificates. I wonder if the researcher could provide some more information about that.

The Chair: You should have the memo in front of you about that. It is contained in the memo. It was given to all committee members this afternoon.

Any further business? If the members of committee could -- sorry.

Mr Frankford: I do not know if this is it, but --

The Chair: It is not. No. On page 3 of the report from the legislative research service, the information I think Mr Frankford is looking for is contained on page 3.

Any further business before the committee? If the committee members could hold back for a couple of minutes on adjournment to discuss some arrangements about tomorrow. We adjourn until 10 o'clock in the morning.

The committee adjourned at 1627.