Canada’s Access to Information Act is built to be broken

by Sean Holman. Originally published on Policy Options
November 8, 2021

In 1996, the Canada Revenue Agency knew there was a connection between high home prices in Vancouver and the migration of millionaires to that city. But the study showing that connection remained secret until 2016, when whistleblowers leaked portions to South China Morning Post Vancouver bureau chief Ian Young.

Young then filed an access to information request for the full report. The federal government didn’t respond to that request until five years later. When it did, much of the report was redacted. The Canada Revenue Agency has said that delay was unacceptable. It appeared to have nothing to say about the redactions or why that report was kept secret while home prices skyrocketed.

The result is Canadians were robbed of the knowledge they needed to pressure the government about that problem before it became a crisis, just as surely as they are being robbed in today’s disastrous housing market. Yet this sordid story isn’t just representative of how broken our access to information system is. It’s representative of how that system was built to be broken.

Just like its predecessors, the Trudeau government has done little to fix that problem. And, unless that changes with its new mandate – something that could happen as the Treasury Board concludes its review of the Access to Information Act – our faltering democracy will be even further weakened.

Canada’s Access to Information Act was introduced in 1980. This date is important because it’s 15 years after Barry Mather became the first MP to introduce a private members’ bill that attempted to bring the principles behind the American Freedom of Information Act to Canada. In other words, that’s how long the government spent trying to delay and deny the need for such a law.

What were the excuses used to justify that delay and denial then? Pretty much the same excuses that are still being used to justify government secrecy today: the claim that confidentiality is necessary for good decisions to be made – that honest discussion won’t take place if the public can see and hear what’s happening.

This is the point former clerk of the privy council Michael Wernick made when I sparred with him last month during a World Press Freedom Canada debate on access to information, hosted by iPolitics.

Of course, we have no proof of that point’s validity except for the say-so of individuals such as Wernick, who have been party to such proceedings and possess a vested interest in continuing them. Yet, despite that absence of evidence, when the Access to Information Act became law in 1983, it conformed to the contours of the built-in secrecy in our political system rather than challenging them.

Indeed, the exemptions and exclusions to openness in the act are so wide that one contemporaneous column declared the Goodyear Blimp could float through them “without touching either side.” Even though there have been repeated calls to tighten those loopholes from civil society groups, the news media and Canada’s information commissioners, successive governments have failed to do so.

The seduction of secrecy has been too alluring for Prime Minister Justin Trudeau, who reneged on his opposition promise to make government “open by default.”. The result is the government closed almost 150,000 access requests in fiscal 2019-20, providing the appearance of transparency. Yet the most contentious records, which are often the most useful to the public, remain difficult if not impossible to obtain.

In other words, the Access to Information Act is a very Canadian law. It provides the appearance of action without substance, gaslighting the electorate into believing we live in a transparent society when we do not. As a result, Canadians continue to be ignorant of anything discussed in cabinet, government’s top decision-making body. Canadians continue to be ignorant of much of the advice used to make those decisions. This means Canadians don’t have enough information to make good decisions in their personal and political lives.

After all, that’s what the debate over reforming the Access to Information Act is really all about.

Democracy is predicated on the notion that citizens will use truthful information to make rational and empathetic decisions at the ballot box and the checkout line. But when the government retains the discretionary power to only tell the public what it wants about its programs and policies, the truth can all too easily be obscured, thwarting democracy itself.

That’s because if we make decisions based on managed or manipulated information – the kind of information the government’s engorged public relations apparatus disgorges every single day in the form of news releases and talking points – we can’t arrive at rational or empathetic decisions that reflect reality. That’s particularly hazardous in today’s climate of misinformation, disinformation and environmental collapse.

In these tumultuous times, the most important need we have is for control and certainty. The promise of freedom of information is that knowledge will provide such control and certainty by allowing us to make better voting and purchasing decisions, while explaining the past and predicting the future.

But should that promise be broken, as it too often has been in Canada, people will seek other forms of control and certainty. That search will lead them to conspiracy theories, evidence denialism and authoritarianism.

That’s because conspiracy theories create certainty by explaining the uncertain and uncontrollable, while evidence denialism does the same thing by excluding complicating information.

Such beliefs can multiply where there is a gap between what the public knows and what it believes the powerful know, as is the case with secretive governments. And, in these fraught environments, authoritarianism can all too easily become a means of exerting control, even as it violently deprives groups of this same power.

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The attraction of these noxious beliefs, in this country and abroad, may well increase as the chaos created by climate change and biodiversity loss accelerates in the coming years. The reform of our broken Access to Information Act could be part of a suite of reforms needed to address this democratic decline. It could create a more resilient political system that fosters control and certainty via greater availability of evidence and opportunities for democratic participation. And it could be part of an effort by the Trudeau government to reclaim some measure of the idealism it has exchanged for opportunism over the past six years. Because the alternative is the continuation of a paternalistic political system that poses more and more of a risk of alienating Canadians every single day.

This article first appeared on Policy Options and is republished here under a Creative Commons license.