B.C.’s Bill 9 among rash of Canadian legislative changes diluting rights, advocate says

The legislature building in Victoria, B.C., on Monday, September 25, 2023. THE CANADIAN PRESS/Chad Hipolito

The B.C. NDP’s controversial Bill 9 is among several pieces of Canadian legislation threatening to decrease government transparency or dilute personal privacy rights, advocates warn.

Mike Larsen of the B.C. Freedom of Information and Privacy Association acknowledged some of the recent changes and proposals are incremental, but cautioned they represent the “death of transparency by a thousand cuts.”

“The rights of Canadians to seek timely and accurate information about the decisions being made by their governments are being eroded,” Larsen told CTV News.

“This is also happening across party lines—and that’s something I think is worth taking note of.”

Federal Bill C-4 passed last week with support from the Liberals, Conservatives and NDP, exempting national parties from established privacy rules while collecting personal information from members of the public.

The latest provincial example was from Ontario Premier Doug Ford’s government, which has moved to shield documents from Ford’s office and the offices of his cabinet ministers from freedom of information requests.

The change—which would be applied retroactively—was announced on Friday the 13th, prompting Larsen to declare a “transparency horror show” underway in the country.

He said B.C.’s Bill 9, introduced last month, would give more discretionary powers to the heads of public bodies to decide whether an FOI request is valid, while also expanding the grounds for such requests to be dismissed.

It also changes the language around the government’s duty to fulfill FOI requests “without delay” to “without unreasonable delay.”

Larsen noted that governments tend to frame these types of amendments as being in the name of “efficiency” or “modernization,” but argued their effect is to diminish the public’s right to know, tilting the balance of power away from everyday citizens.

Members of both the B.C. Conservatives and B.C. Greens have spoken out against Bill 9 this month. Among the critics is Green MLA Rob Botterell, who helped draft the province’s Freedom of Information and Protection of Privacy Act in the early 1990s, when it was also enacted with bipartisan support.

Last week in the legislature, Botterell called Bill 9 the latest step in a “34-year trend” to degrade the transparency rights outlined in the law, while urging his NDP colleagues to vote against parts of the proposal.

“Every single NDP member in this house must speak up,” he said. “This act, with those amendments, completes the effort that has been undertaken over the years to eviscerate this legislation.”

Citizens’ Services Minister Diana Gibson has defended the changes, argued that FOI requests are “larger, more complex and far more resource-intensive” than when B.C.’s transparency legislation was first introduced, creating an impractical situation for government.

“Public bodies across the province, from ministries to school districts to municipalities and health authorities, are struggling under the administrative pressure of maintaining timely and equitable access for all FOI applicants,” she argued in the legislature earlier this month.

“These amendments are intended to make FOI processes more transparent and workable for everyone involved.”

Some of the proposed amendments have not been controversial—and the legislation is supported by Michael Harvey, B.C.’s information and privacy commissioner, who was consulted in the drafting of the bill.

In a statement, Harvey said the changes “strive to address operational pressures” while potentially getting FOI records “into the hands of applicants faster.”

Larsen said he’s not holding his breath for such improvements—and urged anyone who opposes the changes to speak out while the debate is ongoing.

“This is a great opportunity to contact your MLA and raise concerns,” he said. “Because ultimately, transparency is necessary for democracy.”