A few years ago, former Edmonton resident Sheryl McCumsey noticed scores of plants in her garden were dying each time her then-neighbour sprayed pesticides on his lawn. Despite causing about $7,000 worth of damage and forcing her to move the house's air intake, she said, the man "just laughed" when she asked him to stop.
Exasperated, she turned to the city for help only to learn Edmonton was also spraying pesticides throughout the city at that time. Among the mix was chlorpyrifos, a pesticide that the city was using to kill mosquitoes. It was recently banned in Canada over health concerns, but was still legal then.
Worried about the possible health impacts of chlorpyrifos and other pesticides, McCumsey reached out to the federal agency that regulates pesticides for health and environmental data. She ended up on a wild goose chase that involved a request to fly to Ottawa which she refused due to the pandemic, secretive affidavits that blocked her from speaking publicly about the data she reviewed and edicts instructing her to take only handwritten notes.
Her onerous quest shines a light on the complex rules restricting public access to information about the thousands of pesticides and toxic chemicals used in Canada each year. Pesticide companies fight tooth and nail to protect "confidential business information," test data and other information they insist could reveal trade secrets they must share with the federal government before selling their products.
Unlike the European Union and the U.S., Canada doesn't demand these companies justify why their information needs to remain private. Federal officials simply take them at their word, making the data difficult to obtain behind a wall of restrictions they say are necessary to safeguard the Canadian economy.
Critics have blasted the rules, saying they protect federal officials and pesticide and chemical companies at the expense of the environment and Canadians' health.
"We don't have good access to information about pesticides," said federal Green Party Leader Elizabeth May. "We don't take the precautionary principle seriously … and the agency (responsible for pesticides) continues to repeat false, self-congratulatory mantras that we have the 'best and strictest pesticide regulations in the world' — which we don't."
David Suzuki Foundation national policy manager Lisa Gue agreed. Information about pesticides and other toxic chemicals protected by confidential business information provisions are hidden in "quite the black box," she said. "We can't say definitively what's in that box, how significant that data could be or what we're missing because of the way it is protected."
When Sheryl McCumsey set out to learn about the health and environmental impacts of pesticides used in Canada, she did not expect a wild goose chase.
While similar rules apply to most harmful chemicals sold in Canada, the problem is most severe with pesticides. There is growing evidence these chemicals are seriously harming biodiversity and impacting human health, yet between 1981 and 2016, farmers increased their use of the chemicals by up to 412 per cent.
Despite being "designed to kill," Gue said researchers and members of the public trying to see health and environmental test data on pesticides are stymied by red tape at every turn.
Take McCumsey: to see environmental and health testing data about chlorpyrifos, she first had to ensure the pesticide was already under review by federal officials because detailed data about pesticides that aren't under review is kept confidential. Then she had to fly to Ottawa, where officials asked her to sign an affidavit swearing she wouldn't copy or talk about her findings in a commercial setting. Finally, she was let into a room to consult the documents — during business hours only.
Federal officials slightly modified this so-called "reading room" process during the pandemic. They can now send the files on an encrypted USB drive, explained Ecojustice lawyer Laura Bowman, but the ban on copying files or discussing them remains.
Health Canada defended the process in a statement, noting "a wide variety of documents with respect to pesticides … are made available to the public" through its public registry. This includes a "pesticide product" database and published decision documents about pesticides sold in Canada. Canadians can also obtain information through a freedom-of-information request, but confidential business information will be redacted from these documents.
Bowman said the bulk of these resources isn't much use in practice. The database contains so little information, it is "virtually useless," while the published decision documents "vary in quality quite a lot" when it comes to learning about the chemicals, Bowman said. And the Canadian Association of Journalists has dubbed Canada's federal freedom-of-information system "broken" due to long processing times and strict redactions.
Even the agency responsible for regulating pesticides in Canada has agreed the system needs an overhaul. In a recent internal report Canada's National Observer obtained through a freedom-of-information request, officials acknowledged there was "consensus" the government must "communicate more clearly, openly and in plain language."
Gue, of the David Suzuki Foundation, said part of the problem is there is no clear definition of what actually counts as confidential business information.
Because of its confidential nature, most people have no idea what information companies submit and why they want it protected, making it hard to develop rules around what should and should not be kept secret. Some of that material might genuinely contain trade secrets, she said, but that is impossible to know because under the current system, the government agrees to protect companies' data submissions "by default."
There are some changes on the horizon. In March, MPs voted to update Canada's main environmental law with provisions to improve transparency on toxic chemicals. If it becomes law, the rules will require the government to assess a statistically significant number of confidential business information requests to make sure they actually contain trade secrets, Gue said.
In the U.S., where similar rules apply, officials found nearly a third of confidential business information requests did not need to be confidential, Gue said. However, because pesticides are regulated under different legislation, the government will not review confidential business information requests about them.
That needs to change, Gue said.
"The pendulum has swung a little too far in terms of protecting commercial interests when the (government's) top priority should be protecting human health and the environment."