Michel Drapeau considers himself an equal-opportunity provocateur. Since 1994, the lawyer and retired colonel has filed over 5,000 access to information requests to just about every single ministry, agency and authority within the federal government, from the Royal Mint to National Defence, for hundreds of clients—including nearly every federal political party in the country. His work helped uncover some of the more gruesome details of Canada’s mission in Somalia, which ultimately saw the disbanding of the Canadian Airborne Regiment. He is also the reason former chief of defence staff and ambassador John de Chastelain’s penchant for $285 bottles of wine is a matter of public record.
Today, Drapeau’s knack for writing access to information requests is testing the exclusion that allows the Canadian Broadcasting Corporation to withhold sensitive and potentially compromising information concerning many of its core endeavours, including how its spends much of its $1-billion yearly allotment from the federal government. As well, his probe into the CBC—a “forensic examination,” as the 77-year-old calls it—is apparently fuelling a feud between the public broadcaster and Quebecor, one of the country’s largest media companies and the CBC’s chief French-language competitor.
Since the fall of 2007, Drapeau’s office has filed nearly 800 ATI requests with the CBC, asking for details on everything from its corporate governance structure and the cost of its coverage of the royal visit in 2005 to the amount that Sylvain Lafrance, head of the CBC’s French service, spent on cleaning his private boat. The CBC’s resulting disclosure—notwithstanding the full-page newspaper ads the broadcaster has taken out proclaiming its transparency—has largely been “bulls–t,” according to Drapeau. Hundreds of requests went unanswered, even unacknowledged, for two years, something Drapeau blames on the arrogance of CBC corporate management. “The CBC has not made the psychological and corporate turn,” he says. “They don’t understand that they are no longer a private-like organization that they can do as they wish without any public oversight. They have a sense of hostility toward anybody exercising their right to have access to records.”
For its part, CBC management maintains that much of the material Drapeau has requested is of commercial value to his client, the Quebecor-owned Sun Media chain, and giving it up would be tantamount to Macdonald’s sharing its secret sauce with Burger King. Yes, the CBC is a taxpayer-funded organization, they say; but it is also a broadcaster whose competitors aren’t similarly compelled to divulge sensitive journalistic, creative and programming information. The CBC’s vice-president of communications, Bill Chambers, says the delay in releasing information was due to the sheer volume of ATI requests, not corporate intransigence—a feeling seconded by Canada’s information commissioner, who has herself been at odds with the CBC recently.
“As soon as the CBC became subject to the Access to Information Act, they received many more requests than they expected, and were not staffed appropriately,” Suzanne Legault told Maclean’s. (Since 2007, the CBC has more than doubled the size of its ATI staff, to eight.)
And so a feud of sorts between the CBC and Quebecor plays out. CBC CEO Hubert Lacroix recently told a parliamentary committee that Sun Media has used its papers to “smear the public broadcaster” by publishing disparaging stories about the expenses of CBC senior management. Quebecor president Pierre Karl Péladeau, for his part, has a $700,000 defamation suit against Lafrance, who in a 2007 Le Devoir interview said Péladeau “was acting like a thug” for pulling out of the Canadian Television Fund. Péladeau’s lawsuit, CBC brass suggests, is part of Quebecor’s larger plan to sully the CBC’s reputation for its own competitive gain. Coincidentally or not, Sun Media has run dozens of stories critical of Lafrance since 2007, most of which drew on Drapeau’s ATI requests written on Sun Media’s behalf.
The outcome of this multi-front battle between public and private media corporations will dictate how much the CBC, one of the country’s most enduring and recognizable brands, must divulge to its public—and to its competitors in an increasingly cutthroat media environment.
Though he retired from the armed forces in 1993, Drapeau still trades in an army man’s lingo. “I had the staff ready to descend on the CBC come Sept. 1, 2007,” he says. “It was a target-rich environment. No one has been there before.” Sept. 1, 2007, was when, as part of its Federal Accountability Act, the Conservative government mandated that the CBC and 69 other governmental corporations and agencies be subject to the Access to Information Act. “We were told that every book was available on the Net,” he says, slapping two three-hole binders on the table in his office conference room and making an immodest gesture with his arm. “Two binders? Give me a break! This is every corporate policy that the CBC has?”
He says he ran into other problems. “For 99.9 per cent of the requests, the CBC failed to respond within 30 days, which is considered a refusal,” he says. When the CBC finally produced the documents, many were heavily redacted. The reason: the corporation is allowed to withhold “any information that relates to its journalistic, creative or programming activities.”
It’s a sensible enough exclusion that allows the CBC to protect its journalistic sources and commercial interests. Yet Drapeau believes the corporation has used it as an excuse to avoid disclosing potentially embarrassing information. “I don’t have a problem with the exemption. I have a problem with the way it was applied,” he says. “They will use it to the nth degree in order to not release any information.” The CBC, naturally, takes a different view. “If you ask us for something that is entirely to do with our programming, you are going to get a redacted document,” retorts the CBC’s Chambers. And indeed, Drapeau’s office asked for financial audits of the CBC’s Olympic coverage and documents relating to the cost of its Hockey Night In Canada theme contest, among other similar requests.
Yet the broader question is that for now the CBC decides what constitutes its own journalistic, creative or programming activities, an idea with which both Drapeau’s office and federal Information Commissioner Suzanne Legault have taken issue. It’s the subject of an ongoing court action between the CBC and Legault’s office. The CBC challenged the commissioner in court, saying only a judge—and not Legault—could review its sensitive documents. In September, a federal court ruled against the CBC, which promptly appealed the decision.
Precedent would appear to be on the commissioner’s side: in the case of the BBC, governed by similar disclosure laws, the country’s information commissioner (and not the BBC) decides what information can be withheld from public view. And Legault points out that Atomic Energy of Canada Ltd., which has a similar ATI exclusion, regularly submits its sensitive documents to her office for review.
The corporation has since responded to most of the requests, and posted much of the (sometimes heavily redacted) material on its website, including financial audits, senior management expenses and annual reports—though not before David Statham, a lawyer in Drapeau’s firm, sued the corporation. (Both the Federal Court and the Court of Appeals quashed Statham’s complaints, saying that by the time the case was heard, the CBC had responded to all of Drapeau’s office’s ATI requests, however late.)
Drapeau says it’s his own interest in the inner workings of the CBC that’s behind their investigation. “It was my initiative,” he says, adding that Sun Media had no input into the direction of the investigation. Still, Sun Media has certainly capitalized on Drapeau’s findings—particularly those involving Lafrance, head of Quebecor’s biggest competitor in its home province. Between Jan. 1, 2007, and Aug. 4, 2010, the chain’s English-language papers, including the Toronto and Calgary Sun, published 10 stories about Lafrance’s expenses; in the same period, they published only three about Richard Stursberg, then Lafrance’s English-language equivalent. The gap was wider in Quebec: the Quebecor-owned Journal de Montréal ran 12 stories critiquing Lafrance’s expenses during the same time period, and only one on Stursberg.
“At Quebecor, we encourage all our journalists to make every effort to report on how the government spends its tax dollars,” says Quebecor corporate vice-president Serge Sasseville, noting that Quebecor journalists regularly investigate other facets of government as well. “It happens that Radio-Canada is one of the most important Crown corporations in the country, and receives the biggest taxpayer subsidy. It is absolutely not a campaign against Sylvain Lafrance.”
Meanwhile, the court battle between Péladeau and Lafrance, stemming from the “thug” remark, plods along. Lafrance made the comment in early 2007, soon after Quebecor-owned cable company Videotron announced it would withhold its contributions to the Canadian Television Fund, in protest of how the fund allocated money. “I was dismayed” after hearing Lafrance’s remark, Péladeau said. “It was an attack on my reputation. It perturbed me. There was an intention to insult me publicly.”
The trial has taken on elements of the absurd. Lafrance’s lawyer brought in an expert to distinguish the difference between calling someone a thug and saying that they are acting like a thug. (“It’s not an identity, it’s an analogy,” testified linguist Jean-Claude Corbeil.) Two weeks ago, Péladeau’s lawyers asked for Judge Claude Larouche to be removed from the case, claiming bias.
The CBC’s Chambers has difficulty believing the ATI requests, the hounding of Lafrance and Péladeau’s defamation suit are a coincidence. “It’s impossible not to recognize that there’s a court case going on in which Quebecor is suing Lafrance and the CBC,” he says. “Is that linked? I can’t speculate. But there’s lots of circumstances that raise questions. There was a spike in the number of [access] requests to the CBC in the fall. We got a hundred in a couple of weeks. Is it a corresponding spike? Who knows. Maybe it’s just a nice person in British Columbia who all of a sudden took an interest in our internal workings.”