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Fix broken Access to Information law, public tells federal review

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OTTAWA — Civil society groups, journalists and members of the public are telling the federal government it is time to fix Canada’s broken transparency law.

Written and oral submissions to a federal review call for expansion of the Access to Information Act, removal of numerous loopholes in the law, strict timelines for responding to requests and more resources to make the system work.

The issue has received scant attention on the election campaign trail, but whichever party forms government will get a clear message: the 38-year-old access law, drafted in the pre-internet era of metal filing cabinets, is in desperate need of reform.

The law allows people who pay $5 to ask for a range of federal documents — from internal emails to policy memos — but it has long been criticized as antiquated and poorly implemented.

The federal review is focusing on the legislative framework, opportunities to improve proactive publication, and assessing processes to improve service and reduce delays.

The Centre for Free Expression at Toronto’s Ryerson University says in its submission that the review launched in June last year is an opportunity to demonstrate a commitment to transparency and accountability.

“Today we have an Act with exceptions and exemptions that have been stretched beyond recognition to prevent disclosures, a critically under-resourced access system not equipped to keep up with requests, and a culture of secrecy within government that views access as a threat rather than a right of all Canadians,” says the brief.

The centre is the co-ordinator of the Right to Information Alliance Canada, composed of 17 organizations including News Media Canada, the Centre for Law and Democracy, the Canadian Civil Liberties Association and Greenpeace Canada.

In its submission to the review, the group World Press Freedom Canada says that during the COVID-19 pandemic — a moment when Canadians required access to a stream of government information for their safety — the pipelines were rusted and clogged from years of deliberate neglect.

“The numerous flaws in Canada’s access-to-information regime can be reduced to just two: the law provides far too many reasons to keep information secret, and releasing information takes far too long.”

A shift in culture is also needed, says Vincent Gogolek, former executive director of the British Columbia Freedom of Information and Privacy Association.

“When estimated time to complete an ATIA request is measured in years, when records either disappear or are never created, and when officials seek to prevent requesters from exercising their rights on the flimsiest of pretexts, these are signs that the problem is not just with laws and regulations, but with policies and with the basic culture of the institutions subject to the Act,” says his submission.

“That has to change.”

During a series of public consultation sessions this year as part of the review, attended by a total of about 200 people, participants advocated:

— Expanding the right of access under the Canadian law to anyone in the world;

— narrowing exceptions in the law with the guiding principle of releasing as much information as possible; and

— a requirement that government information be disclosed in all cases unless there are valid reasons not to publish it.

A report from the government review is to be submitted to the Treasury Board president by Jan. 31 next year — perhaps a reason the Liberals are not binding themselves to any Access to Information promises in their platform.

The NDP platform is also silent on the access law, though leader Jagmeet Singh expressed a need for more openness when asked about it this week.

“I think transparency is incredibly important and we’ve seen for a while that it’s been difficult to obtain information, and it’s something we absolutely believe in,” he said in Montreal.

The Conservatives promise to review the access law and to give the information commissioner, an ombudsman for users, the power to order departments to “release information promptly” to end “the current government’s practice of endless delays that makes a mockery of the law.”

This report by The Canadian Press was first published Sept. 3, 2021.

Jim Bronskill, The Canadian Press

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Crime

Victims’ families boycotting N.S. mass shooting inquiry over questioning of Mounties

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TRURO, N.S. — The relatives of victims of the 2020 Nova Scotia mass shooting have told their lawyers to boycott the public inquiry investigating the tragedy, after its commissioners decided to prevent cross-examination of key Mountie witnesses.
The law firm representing 14 of 22 families issued a statement saying it was instructed not to attend the hearings on Wednesday and the next three hearings on the schedule. Patterson Law said the families are “disheartened and further traumatized” by the commission’s decision Monday to prevent the law firm’s lawyers from directly questioning Staff Sgt. Brian Rehill and Sgt. Andy O’Brien.

Rehill was the RCMP’s risk manager at its Operational Communications Centre in Truro, N.S., when the rampage that claimed 22 lives over two days began in nearby in Portapique, N.S., on April 18, 2020. When the centre received reports of an active shooter, Rehill assumed command while O’Brien assisted in overseeing the early response.

The federal-provincial commission of inquiry agreed Monday to provide special accommodations for three senior Mounties when they testify about command decisions they made as the tragedy unfolded.

Rehill and O’Brien will face questions from commission lawyers via Zoom calls that will be recorded and broadcast at a later date. Participants and lawyers who wish to observe their testimony must remain off screen with their microphones muted while each Mountie is speaking.

No reasons were given for the special arrangements. The commission has said this information is considered private because it deals with physical or psychological health needs.

Participating lawyers were told to submit questions for Rehill and O’Brien to commission lawyers in advance of the officers’ testimony, which is expected to take place on Monday and Tuesday, beginning with Rehill.

Sandra McCulloch and Rob Pineo, the lawyers for the majority of the families, left their seats at the inquiry unoccupied on Wednesday and held a news conference outside the public library in Truro. Pineo said it’s now unclear whether the family’s representatives will return to the process, adding that he will keep consulting with them.

“This was supposed to be the process that would get the families information and get their questions answered and that is simply not happening,” he said, recalling that they had to hold a public march in Truro and Halifax to pressure the federal and provincial governments to launch a public inquiry instead of the limited review that was originally planned.

Nick Beaton, whose pregnant wife, Kristen Beaton, was killed, said he’s now referring to the mass casualty commission as “a review,” adding that he believes the public inquiry has evolved into a “love triangle” between the commission, the RCMP and the government.

Lawyer Tara Miller said her clients have given her instructions not to attend this week and next week.

“In addition to being fundamentally offside, what this decision does is further erode the confidence of family members who are the most affected,” she said in an interview Wednesday.

“These are individuals who put children to bed alone at night. These are the individuals who celebrate Mother’s and Father’s Days with memories.”

Miller said it has been her clients’ position all along that participating lawyers should be allowed to engage in unfettered but appropriate cross-examination of witnesses.

“That is a fundamental tenet of any kind of a litigation proceeding, and that includes public inquiries,” Miller said.

Miller also said cross-examination of Rehill will be central to the inquiry’s purpose.

“This was the individual who had command of the entire first response,” she said. “The decisions that he made and why he made them, those are all questions that are highly relevant.”

Lawyers for the families of victims Gina Goulet, Lillian Campbell, Aaron Tuck, Jolene Oliver and Emily Tuck said in interviews that they will continue to participate next week despite the restrictions on questioning.

Meanwhile, Staff Sgt. Al Carroll — former district commander for Colchester County — is expected to testify Thursday via a live Zoom call. He will be provided with breaks during his appearance, the commission said Tuesday. He could face direct cross-examination.

The National Police Federation and the federal Department of Justice had requested that O’Brien and Rehill be allowed to provide their information by sworn affidavit and that Carroll testify in person with questions asked only by commission counsel.

Commission chairman Michael MacDonald closed the hearing on Wednesday by describing the absence of the families’ lawyers as “unfortunate.” However, he said earlier in the day he didn’t expect that the accommodations would prevent the gathering of “necessary information” from the Mounties.

Staff Sgt. Bruce Briers took the witness stand Wednesday. He was the risk manager who oversaw the RCMP dispatch in Truro during the second day of the rampage on April 19, 2020. On cross-examination, Briers broke down in tears over not having heard, after he came on shift at 7 a.m., that the killer’s replica police car had a distinctive, black push bar on the front.

He said he now realizes that two officers had mentioned the bar at different points in the morning, adding “I didn’t hear either time. I wish I had; this is one of those regrets.” The bar was also visible in a photo of the replica vehicle that was distributed among some senior officers at about 7:27 a.m.

He said he could have issued a broadcast on police radio about the push bar and it might have “made a big difference.”

“I have to live with that.”

This report by The Canadian Press was first published May 25, 2022.

— With files from Michael MacDonald in Halifax.

Michael Tutton, The Canadian Press

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Alberta

Judge decides ‘Freedom Convoy’ organizer Tamara Lich stays out on bail

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OTTAWA — Tamara Lich, a key organizer of the “Freedom Convoy” protest that gridlocked Ottawa for weeks, will remain released on bail while awaiting trial, a judge ruled Wednesday.

Ontario Superior Court Justice Kevin Phillips said he made his decision because she has followed her bail conditions, her surety has supervised her well and she’s already had a “taste of jail,” which he said lowered her risk to reoffend.

The judge said he does not accept that Lich breached her release conditions by agreeing to receive an award, and added Lich can be trusted to respect the conditions of her release.

She was released in March with a long list of conditions, including a ban from all social media and an order not to “support anything related to the Freedom Convoy.”

The terms of Lich’s release were intended to prevent a similar protest from happening in the national capital, the judge said, adding the court does not seek to control people’s political views.

“The courts are not a thought police. We seek only to control conduct to the extent that certain behaviour will violate or likely lead to violation of the law,” he said.

The protest is over and has left Ottawa, he said, adding it would be “practically impossible” to mount a similar protest in the city again.

Lich’s lawyer, Lawrence Greenspon, said in an interview Wednesday that he was pleased with the decision.

“She’ll be able to conduct her life in a lot more normal fashion as a result of the judge’s ruling,” said Greenspon.

Moiz Karimjee, a Crown prosecutor, said last week that Lich violated one of her bail conditions by agreeing to accept an award for her leadership during the Ottawa protest, and should be sent back behind bars to wait for her trial.

Greenspon argued last week her bail conditions should be loosened to allow her to come to Ontario and use social media.

He told the court that the social media ban imposed on Lich was unnecessarily broad and has had a huge impact on her life while she’s been out of custody.

However, Phillips said Wednesday the ban on Lich’s access to social media is warranted.

“Social media can be a problematic feedback loop where people get egged on and caught up in group activity they would never perform on their own,” he said.

Social media “undoubtedly contributed to and even drove” Lich’s conduct related to the protest, and her separation from it is necessary to lower her risk of reoffending, said Phillips.

Noting that Lich is in her late 40s, Phillips said she should be able to remember “how to use the social skills she surely built up before the advent of the internet.”

Lich is able to communicate by many other means, including email, phone or meeting in person, he said.

Greenspon said while he would have liked to see the social media ban reversed, “the most important thing was the rejection of the Crown’s efforts to to put her back in jail for agreeing to accept an award.”

The judge did amend her release conditions to allow her to visit Ottawa.

Lich’s motivation for coming to the city cannot be disclosed because it is under a court-ordered publication ban.

Phillips reiterated the high unlikelihood that Lich could organize an event resembling the convoy protest.

While she’s permitted to come to Ottawa, Lich is not allowed to visit the downtown core so as not “to walk around the very neighbourhoods she is alleged to have traumatized,” he said, except to attend court or meet with legal counsel.

Lich and fellow protest organizer Chris Barber are jointly accused of mischief, obstructing police, counselling others to commit mischief and intimidation.

The “Freedom Convoy” protest evolved into a weeks-long demonstration that congested the streets of Ottawa in February.

This report by The Canadian Press was first published May 25, 2022.

———

This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.

Erika Ibrahim, The Canadian Press

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