Right to Know Conference: Access to Information as a Human Right

Opening Remarks by Suzanne Legault, Information Commissioner of Canada

September 26, 2017
Ottawa, Ontario

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Over the years, I have focused our Right to Know Week activities on educating high school and university students, French communities around Canada, on discussions with experts inside and outside government, and on debates with academics and journalists.

Today’s Right to Know Conference will delve into access to information as a fundamental human right. The notion of access to information as a human right is well established around the world, but not so well understood in Canada. Yet, freedom of information has been recognized as an integral part of the fundamental right of freedom of expression, by the UN General Assembly (1946).  

Article 19 of the Universal Declaration of Human Rights (1948) states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers.”

International tribunals have recognized access to information as a human right. In 2006, the Inter-American Court of Human Rights ruled that the Government of Chile had violated the human rights of Mr. Claude Reyes when he was refused access without rationale to documents relating to a deforestation project. It was the first time that an international tribunal had recognized that access to the information held by a federal institution was a human right. The Court found that by refusing to disclose this information to Mr. Reyes, the government had prevented him from participating in a democratic process.

The Court also ruled that the right to freedom of thought and expression protects the right to access information held by the state. This right was considered crucial to democracy because it gives citizens the opportunity to be informed which enables them to effectively participate in government affairs.

Around the world access laws guarantee citizens the right to exercise their right to information, and in so doing, forcing their governments to be accountable, to reveal corruption and abuse.

In India, where access to information legislation was introduced in 2005, the government receives 6 million requests per year. In that country, the right to know is used by citizens to comb through government documents looking to combat government and police corruption. According to the Commonwealth Human Rights Initiative, at least 60 people have been killed after filing an access requests and 300 others have been harassed or physically hurt. Yet, India’s citizens continue to exercise their right so they can access their food rations, ensure their children’s schools are built with the required materials and that their children are safe inside these schools. The right of access is so important in India that activists have marched in the streets to help protect this right.

In Canada, access to information was interpreted legally as a quasi-constitutional right. It stems from subsection 2(b) of the Canadian Charter of Rights and Freedomswhere access to government information is a necessary precondition of meaningful expression of the functioning of government. Subsection 2(b) protects our fundamental freedom of thought, belief, opinion and expression, including freedom of the press.

Here in Canada, the right to access information is also used to guarantee that fundamental human rights are respected. For example, members and allies of Aboriginal communities in Canada use it to obtain information in order to hold the government accountable for safe housing, safe schools and drinking water. MP Charlie Angus wrote a book entitled “Children of the Broken Treaty,” and submitted numerous access to information requests to hold our government accountable for the fundamental rights of children on reserves. Dr. Cindy Blackstock was also able to use the access to information process to hold the government accountable for the education of Aboriginal children.

Another Canadian example is that of Omar Khadr. Mr. Khadr, the only Canadian citizen detained at Guantanamo Bay, was denied documents compiled by Canadian officials during his incarceration. Mr. Khadr’s legal team was provided with 3,000 pages – most of which were completely redacted on the basis of international relations, national defense and security, and “specific public interest immunity” under section 38 of the Canada Evidence Act. His lawyers brought the matter to court claiming that the Canadian government had violated Mr. Khadr’s section 7 Charter rights to life, liberty and security of the person. Mr. Khadr had been denied his right of access to documents relevant to the charges he was facing.  The denial of access to documents frustrated Mr. Khadr’s ability to make full answer and defense. The Federal Court dismissed the case but that decision was overruled by the Federal Court of Appeal. Mr. Khadr’s case went to the Supreme Court of Canada which upheld the Federal Court of Appeal Decision.

There are many other examples in Canada of access to information as a fundamental human right and we are lucky to have a panel of experts with us today who have first-hand knowledge and experience in this area. They will share their views and their perspective on this right. I am very much looking forward to hearing from Micheal Vonn of the BC Civil Liberties Association, Toby Mendel of the Centre for Law and Democracy, Alex Neve from Amnesty International Canada and Philip Tunley, a lawyer and director of the Canadian Journalists for Free Expression.

Following this discussion we will turn to the second panel of the afternoon in relation to Bill C-58. I have long advocated for a strong, leading access to information law in Canada. In March 2015, I made 85 recommendations to Parliament that aim to strike the right balance for transparency. After studies, consultations and reports, the government has tabled Bill C-58, An Act to Amend the Access to Information Act and the Privacy Act and to make consequential amendments to other acts. The government is presenting this bill as improving the current Access to Information Act. We have a panel of experts this afternoon, Vincent Gogolek from BC FIPA, Manon Cornellier from Le Devoir, Dennis Molinaro, Historian and R. Roy McMurtry Fellow, and Teresa Scassa, Canada Research Chair in Information Law, University of Ottawa who will present their views on Bill C-58. Having carefully reviewed the bill, I am generally very disappointed with its content, and I will be asking Parliament to table a special report containing my recommendations to improve it this week.

The conference today promises to be engaging and thought provoking. As you listen to our two panels this afternoon, I urge you to consider Bill C-58 in the context of the right to information as a fundamental human right. Are we really measuring up to international norms with this proposed reform? I invite you all to deliberate on the ideas presented to you today and to consider how we can advance the right to know as a fundamental human right in Canada.

Before we start with our two panels, it gives me great pleasure to introduce our keynote speaker, Ms. Laura Neuman. Laura is the Director of the Global Access to Information Program at the Carter Centre.

Laura’s accomplishments over the years are really too numerous to list. Let me share just a few highlights.

She has worked in Latin America, Africa, Asia and North America. She developed an access to information assessment tool which has been used in more than eleven countries. Laura and her team used the tool to measure the effectiveness of a government institution in terms of access related structures, rules and training.

Laura has also developed a project on women and the right of access after studies in Bangladesh, Guatemala and Liberia showed that women did not have the same access rights as men.

She has written extensively on the right of access over the years and her scholarly work continues to be cited in numerous publications.
She has, and continues, to work tirelessly to advance the right of access for marginalized people around the world.

I have known Laura now for over 10 years. I have long been an admirer of her expertise, her intelligence, her determination and her dedication.

Please join me in welcoming Laura Neuman to the podium