Immunity from scrutiny: Canada’s Access to Information Act hobbles democracy

(January 7, 2013) Canada’s Access to Information Act perversely gives Export Development Canada (EDC) the legal power to keep records of its operations secret, charges Probe International. In its submission to the Office of the Information Commissioner’s review of Canada’s 30-year-old Access to Information Act, Probe International declares it is time to reform the Act and remove EDC’s extraordinary privileges.

Canada – a country that prides itself on being a free and democratic society – is no longer recognized as a world leader in right to information law. A 2011 Global Right to Information Rating ranked Canada 40th out of 89 countries and our own Information Commissioner has sounded the warning in launching a review of Canada’s 30-year-old Access to Information Act.

The main causes of the Act’s fall are year-long delays in filling requests and blanket exemptions, which cripple citizens’ rights to information that Canadian governments have preferred to treat as their own.

In its submission, Probe International, the Toronto-based think-tank and watchdog of Canada’s international aid and trade programs, is urging Information Commissioner Suzanne Legault to recommend to Parliament that it eliminate loopholes in the Act that allow the Crown corporation, Export Development Canada (EDC) to keep its multi-billion dollar operations under wraps.

Probe International’s submission draws on its experiences over several decades with EDC, a mega-agency that subsidizes some $100 billion of Canadian business activity at home and abroad each year. Although EDC was brought under the Access to Information Act in 2007, it is functionally exempt from the Act, thanks to broad exemptions that allow EDC to keep virtually all of its records secret.

An attempt by Probe to use the Act to obtain details of EDC’s support for Chile’s electricity sector, and particularly for a controversial mega-dam scheme in Chile’s environmentally fragile Patagonia region, produced records so eviscerated there was no useful information remaining. Probe’s appeal to the Information Commissioner’s Office to force EDC to disclose more documents failed because the Access to Information Act gives EDC the legal right to refuse to disclose most of its records.

“We are now in the truly bizarre situation in which Canada’s Access to Information Act is EDC’s chief defense against disclosure, guaranteeing near-complete secrecy of its operations,” said Patricia Adams, Probe International’s Executive Director.

Probe argues that EDC’s operations must be transparent to Canadians.

“Without effective public oversight and market discipline, EDC’s loans and guarantees can lead to reckless and politicized decisions and create a perfect breeding ground for corruption,” says Ms. Adams.

EDC has a long history of backing Canadian corporations involved in controversial projects and dodgy markets: EDC financed Canadian suppliers to the Three Gorges dam and helped cash-strapped American carriers to purchase Bombardier jets and trains. It extended political risk insurance for Canadian companies investing in Libya and financing for TransCanada Pipeline’s proposed Keystone Pipeline Project in the US. In India, EDC financed SNC-Lavalin to overhaul three hydro dams in the country’s southwestern state of Kerala: allegations of corruption in the awarding of the contract erupted and Indian authorities are now seeking the extradition of a senior SNC-Lavalin vice president on criminal conspiracy charges. One Indian News referred to the scandal as “one of the biggest financial scams that rocked Kerala.”

“EDC’s virtual immunity from disclosure compromises the public’s ability to test EDC’s environmental standards, to identify cross subsidies that belie its claim to operating on commercial terms, to expose red flags to improper business practices, and to guarantee that public funds are not being used for political purposes,” says Ms. Adams.

Ultimately, she says, the Access to Information Act’s failure to disclose details of EDC’s operations handicaps Canadian democracy.

For more information, contact:

Patricia Adams, Executive Director, Probe International
Tel. 1 (416) 964-9223 (ext. 227)


Probe International’s submission in full is available here.

For more information on Open Dialogue, see the Office of the Information Commissioner of Canada’s website. The Commissioner will report her findings and recommendations to Parliament in the fall of 2013.

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