Access to Information under the Access to Information Program (aka ATIP)
The access to information program is a marvelous vehicle that can be used to hold CRA accountable to their behaviour.
Right now you have to put in a written request, however there is a movement to have all government information kept on citizens to move to a push environment where it will be binding on the government bodies to automatically provide the information they have on you…. to you.
There is an issue that CRA has not quite woken up to and that it is a criminal offense for them to destroy or withold information. To do so is considered an act of obstruction of justice and is a vilolation of section 139 of the criminal code.
Thus, obstructing justice is where a person: “… wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding (existing or proposed), by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody….”
The Code also includes, under obstructing justice, intimidating, bribing or otherwise corrupting someone in respect to their evidence or interfering with a juror.
Examples of obstruction of justice are:
• paying a person to give false evidence;
• threatening or actually assaulting a person because they operated in a police investigation;
• lying to police officer including giving a false name, the circumstances of the crime, the identity of the driver at the moment of a motor vehicle accident;
• removing parking tickets from under windshield wiper; or
• hiding or destroying evidence.
We have seen a lot of breaches by CRA when it come to providing requested information.
It is also interesting to note that CRA when asked for the information directly, refuse and force us to go via the Access to Information Act. Funny enough the same person refusing to give us the information is forced to give it all up when we use ATIP.
The Access to Information Act. What you need to know.
Section 67.1 of the Access to Information Act
Obstructing right of access
67.1 (1) No person shall, with intent to deny a right of access under this Act,
(a) destroy, mutilate or alter a record;
(b) falsify a record or make a false record;
(c) conceal a record; or
(d) direct, propose, counsel or cause any person in any manner to do anything mentioned in any of paragraphs (a) to (c).
Offence and punishment
(2) Every person who contravenes subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.
The notion of “pervert[ing]” the course of justice involves no more than an adverse interference with the proper administration of justice.”
The elements of obstruction of justice are similar to, but different from obstructing a peace officer, perjury and public mischief. Those crimes have their own definitions within the Code.
A unique feature of this particular offense is that it covers attempts to obstruct justice; not just successful obstructions.
Obstrution of justice also covers obstruction of judicial proceedings not yet engaged, or even judicial proceedings which might otherwise have little prospect of success, as well as protecting the proceedings of administrative tribunals such as Law Society disciplinary proceedings.
The words “obstruct, pervert or defeat” have been subjected to judicial scrutiny. In R v Yarlasky, the Ontario Court of Appeal stated that the following is necessary for a conviction of obstruction of justice:
“… that the accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result, and the attempt by the accused to obstruct justice must have been wilful.
“The offence of attempting to pervert the course of justice has been authoritatively defined, in the courts and elsewhere, as “the doing of some act which has a tendency and is intended to pervert the administration of public justice”.
“Perverting the course of justice involves no more than an adverse interference with the proper administration of justice.”
The elements of obstruction of justice are similar to, but different from obstructing a peace officer, perjury and public mischief. Those crimes have their own definitions within the Code.
A unique feature of this particular offense is that it covers attempts to obstruct justice; not just successful obstructions.
Obstruction of Justice also covers obstruction of judicial proceedings not yet engaged, or even judicial proceedings which might otherwise have little prospect of success, as well as protecting the proceedings of administrative tribunals such as Law Society disciplinary proceedings.
The words “obstruct, pervert or defeat” have been subjected to judicial scrutiny. In R v Yarlasky, the Ontario Court of Appeal stated that the following is necessary for a conviction of obstruction of justice:
“… that the accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result, and the attempt by the accused to obstruct justice must have been wilful.
In R v Murray 186 DLR 4th 128, the Ontario Superior Court of Justice had occasion to consider this offence in the context of the infamous Paul Bernardo case. Bernardo:
“… was charged with attempting to obstruct justice by concealing (indescribably horrible) videotapes which he removed from his client’s home on the client’s instructions. Shortly after the accused removed the videotapes, his client was charged with first degree murder and related offences in the deaths of two teenaged girls. The accused retained the tapes for 17 months without disclosing the existence of the tapes to the Crown. The tapes were eventually turned over to the police by counsel who took over the case from the accused. The tapes were used by the Crown at the murder trial.”
One must consider the state of mind when there is a removal of information: Mens rea: Latin for “guilty mind”; guilty knowledge or intention to commit a prohibited act.
One can not knowingly black out names, and or remove other pertinent information without having a guilty mind.
When a government worker under the auspices of the Minister of Revenue, removes or alters information, knowing they are in breach of Section 139 of the Criminal Code and Sections 167 (1) of the Access to Information Act.
As such these criminal activities will not be tolerated. We are currently assisting a case in BC in this particualar matter.
Be very careful about protecting information on your computers, not just from CRA but from anyone who should not have access to your information.
Valuable file data on shared file systems is plentiful in most organizations and comes from a number of sources, including applications, databases, knowledge workers, digital media and ad-hoc business processes. It’s got obvious value to your business, and regulators and auditors recognize its value too.
Unfortunately, if you’re harboring any malicious insiders, they’re also coveting this data. That’s reason enough for you to spend some time getting a handle on who has access to your file data, which users are actually using it, who owns it, and how to ensure that access is based on a business need-to-know.