Federal Access to Information laws give Canadian Citizens the rights to see non-classified / non-secret documents. And normally things work out as they should. But quite often, government departments like the Department of National Defence skirt the rules and deny access to information requests through various other tactics.
The various Government agencies have 30 days to acknowledge your request. They’re also supposed to give you a reasonable time frame for you to expect to receive the information you have requested.
As can be seen though from the response from DND, my request A-2018-00781 has been with the Department of National Defence for 15 months now. That’s generally well above and beyond the time frame that the Act allows for a department to respond.
According to the Office of the Information Commissioner, this tactic is called “deemed refusal”. The government department isn’t saying these records don’t exist nor is the government department exempting these records from release. Both of these actions can be investigated by the Office of the Information Commissioner, and sanctions can be called for if it is found out that a government department has been opaque about the status of records.
On the other hand, if a department simply takes too long in the hopes that the requester forgets about the request, this isn’t something that can bring sanctions. It’s just one of those little “oopsies” that sometimes happens.
I did speak with this analyst’s supervisor earlier this week. The big hold up on this document is they can’t figure out how to excise third party information without raising questions about the handling of this matter.
There are generally two parties that could be expected to be the third party in this Access to Information Request. The victim who made the complaint against Brigadier General Roger Bazin, or the Prosecutor.
In Canada, the victim of the sexual assault generally cannot withdraw their complaint once charges have been laid against an accused. Only the Crown Prosecutor can decide to proceed or not proceed with charges.
So, here’s the million dollar question, and this I think is the issue that the Department of National Defence is trying to navigate around. How does DND confirm to me the fact that it was the Ontario Crown that decided to not proceed with charges without revealing why those charges did not proceed.
The CFNIS were obviously able to bring charges against Roger Bazin, and the charges were strong enough that the were able to merit a preliminary hearing.
Bazin did settle a previous accusation brought against him for similar issues, so it’s not like the accusations brought against him were some fanciful fairy tale.
I believe the reason that the Crown dropped the charges against Bazin had to do with the fact that Bazin was subject to the Code of Service Discipline at the time he is alleged to have molested the boy on Canadian Forces Base Borden in 1972. Gross Indecency, Indecent Assault, and buggery were all Service Offences which the Canadian Forces could conduct a Service Tribunal for, e.g. a court martial. However, prior to 1998, service offences had to be prosecuted within three years of the date of the alleged offence. Even if Bazin were being prosecuted in Civilian Court, he would still have to be dealt with as if he was subject to the Code of Service Discipline. This means that the Crown would have had to take the 3-year time bar into account.
This is what I think is giving the DND Access to Information Office such problems. How does the ATI office release to me the reason the Crown decided to not move forward with charges, without exposing the reason for not moving forward with charges. Don’t forget, DND cannot lie or deceive in their release of information. They can’t for example tell me that the charges didn’t proceed due to a lack of evidence, unless that was the actual reason. Nor can DND tell me that the charges didn’t proceed due to a conviction being unlikely or that a prosecution would not be in the public interest.
If the charges didn’t proceed due to the 3-year time bar, DND would have to release that information. But, this is not information that DND would ever want to release to the public, hence the mental gymnastics.