Information & Ethics Committee on June 3rd, 2014

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much for that. This is helpful.

Now in regard to Bill C-13, Conservative MPs have suggested that the only threshold needed for obtaining private information on Canadian citizens from telecoms is a cop's so-called spidey sense. In terms of your expertise in law, do you believe that's an adequate threshold for warrantless information?

[Daniel Therrien]

I think I would go back to the issue that warrantless disclosure is a concern, particularly given the information that was made public a few weeks ago that this is occurring very frequently, so that is a cause of concern.

I think on that bill I would agree in the end that there needs to be more transparency and I would agree with the Canadian Bar Association that the bills should be divided and that there should be an independent review of privacy interests in the context of electronic investigations.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, but did you say that you do agree the bill should be divided?

[Daniel Therrien]

Yes, and that there should be an independent review because I think Canadians want to know more about why police and security agencies require information. They want to hear this in order to have an informed debate as to the viability and need for this type of legislation. So I would encourage all information to be provided so that this information is out and that a less pluralized debate leading to legislation occurs.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you for that.

Under Bill C-13 the provision for warrantless access will now be extended to peace officers, public officers, mayors, reeves, tax officers, and small-town reeves who all can rely on their spidey sense to get warrantless information on Canadians.

Do you believe that will create major problems or do you believe that is warranted?

[The Chair, NDP, Pat Martin]

That's the last question. A brief answer, please, Mr. Therrien.

[Daniel Therrien]

On that particular point I think I would ask for assistance from the Office if I'm appointed. We're getting into a point of detail that I would not be comfortable talking about.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Therrien.

Thank you, Mr. Angus.

Next for the Conservative Party, Mr. Jacques Gourde for seven minutes, please.

Jacques.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Thank you very much, Mr. Chair.

Mr. Therrien, thank you for appearing before the committee.

Over the course of your public service career, you were in charge of a certain number of files. You mentioned some of them during your presentation.

Can you provide us with more details on your resume?

[Daniel Therrien]

Yes.

In my resume, I mention, among others, the privacy principles related to the Beyond the Border Accord with the United States. That accord involves some 30 individual agreements, most of which aim to share information with the United States under certain programs. We have known, since the Iacobucci and Major inquiries, that this kind of information sharing has to be regulated.

Before any specific agreements on information sharing are concluded with the United States, it was deemed useful to establish privacy principles that would govern that whole accord. The agreement, which I negotiated with colleagues from the Department of Public Safety and American colleagues, essentially aims to harmonize the two countries' privacy principles and, on the Canadian side, to implement the recommendations of the Major inquiry, which established certain rules in terms of information sharing.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

As privacy commissioner, you would oversee programs you used to work on.

The opposition members think that your knowledge of the machinery of government makes you less credible. We can't blame them, as they have never worked in the government. However, the opposition said yesterday that your experience represented a clear conflict of interest.

Can you explain to us how you will take on this new role and in what way your experience will be useful to you?

[Daniel Therrien]

Thank you for the question.

With the indulgence of the committee, I will first talk about principles. Afterwards, I will discuss the values.

When it comes to the principles, I would say that I am acutely aware that the position of commissioner requires total independence and complete impartiality. My legal training enables me to understand these concepts well, and I will deal with all the issues that are referred to me with a completely open mind in terms of the facts and the provisions of the law.

I would not be the first government lawyer to become an officer of Parliament or a judge. I will make an analogy with crown prosecutors who become judges and can be very demanding of their former crown colleagues when evidence is presented.

It is also important to understand that, in my capacity as a government lawyer, I am an advisor to the government with respect to the legality of its actions. My role is not to take those actions myself. If I become commissioner, I will no longer be bound by my duty of allegiance to the executive, and I will exercise my responsibilities completely independently.

I will now talk about the values. I am here this morning to offer my services. I believe in the public service. I am familiar with security agencies, and I have a passion for human rights. I certainly do not want to impose my will, and I want my actions to be useful and effective. Ultimately and soon—I hope—I think I will be able to show my impartiality through my actions.

At the end of my opening remarks, I made statements that are very similar to those made by the former commissioner, and that is not a coincidence. I made those statements because I am a lawyer. I am familiar with the applicable principles and I am here to defend them, as I did at the Department of Justice and as others are doing currently at that department.

Thank you.

[Jacques Gourde, Conservative, Lotbinière—Chutes-de-la-Chaudière, QC]

Mr. Therrien, the leader of the opposition claims that, if you are appointed commissioner, you will be required by law to withhold certain information, since you were the attorney general of the government of the day.

Could you remind the committee of the privacy commissioner's responsibilities and clarify how you intend to fulfill them?

[Daniel Therrien]

I just talked about impartiality. I did not deal with Bill C-13 as a Department of Justice lawyer. So there would be no conflict of interest in that regard.

I don't see any other conflicts of interest that would prevent me from taking action. If a conflict of interest were to arise, I would withdraw from the file. I note that the law provides for the appointment of an assistant or ad hoc commissioner. That could be an adequate mechanism.

After seriously considering the issue—and examining my conscience—I currently do not see any conflicts of interest that would force me to withdraw from a file.

[The Chair, NDP, Pat Martin]

Thank you.

Thank you, Mr. Gourde.

Next for the Liberal Party we are pleased to welcome Mr. Irwin Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

I want to join in expressing our appreciation for your appearance here today, Mr. Therrien. May I, at the same time, thank the outgoing interim commissioner, Chantal Bernier, for her steadfast work and also the former Privacy Commissioner, Jennifer Stoddart, with whom I've had the pleasure as well of working on some of these matters.

Mr. Therrien, I had the benefit of your counsel about nine years ago in an appearance before the then Sub-Committee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. That dealt, among other things, with the relationship between security and rights. One of the things that arose then, and which I want to address now, is the question of a parliamentary oversight committee for national security to watch the watchers. You served in the Department of Justice as chair of national security and intelligence.

Since there have been calls for many years in both the House and the Senate to create a parliamentary oversight committee to watch the watchers, as it has been put, and given the vast amount of data that is now collected by law enforcement agencies and government agencies, do you agree with the merit of this idea? If so, why would you support it, and if not, why would you not support it?

[Daniel Therrien]

Thank you for your question, Mr. Cotler.

As I have tried to say before, I'm in favour of all measures that would increase the control of the individual over their information. That includes more transparency and more accountability by police and intelligence agencies that collect and use and share information in relation to individuals. Certainly one means of being accountable would be for a committee of parliamentarians to be struck to look at these issues. Other countries have certainly adopted similar committees, and I think it is a healthy thing in a democracy for these issues to be reviewed by parliamentarians.

[Irwin Cotler, Liberal, Mount Royal, QC]

You mentioned, sir, in your testimony today that you see respect for human rights as the permanent theme in your career and that this respect for human rights would allow you to make a successful transition as ombudsman, defender, and promoter of privacy rights.

In the matter of the relationship between security and human rights, can you expand on that particular relationship and provide examples in which you have been engaged in seeking to maintain that balance with a kind of underpinning respect for human rights always.

[Daniel Therrien]

I would refer in part to the privacy principles that I have described. The principles in question require that when information is shared, in this case with the United States, or with another country, that the information be accurate, be current, be up to date, and where necessary that it be the subject of conditions, if there are concerns with respect to mistreatment after the information is shared. All of these important considerations, outlined by Mr. Justice O'Connor at the end of his inquiry, we are trying to incorporate in these principles with the United States.

[Irwin Cotler, Liberal, Mount Royal, QC]

Let me, if I may, regarding the principles in the United States, say that 115 years ago a distinguished American lawyer who went on to become a member of the U.S. Supreme Court, Justice Louis Brandeis, spoke in a seminal article of the right to privacy as “the most comprehensive of rights and the right most valued by civilized men”.

How would you relate to that foundational privacy principle?

[Daniel Therrien]

I would agree. I think it is still absolutely valid, full stop.

At the same time, as I said in my remarks, Canadians want to be safe, and I think government is entitled to present proposals to promote security, but not in a way that impedes human rights, including that to privacy. So the two notions that I said do not exist one at the expense of the other can both exist and should exist, and privacy absolutely should be fully respected.

[Irwin Cotler, Liberal, Mount Royal, QC]

I think I may have time for one more question. The Privacy Act was proclaimed into law more than 30 years ago and has not received any significant amendment since that time. A committee studied the issue in 2009 and made recommendations to amend the act.

On October 9, 2013, as you recall, Canada's access and privacy commissioners passed a resolution urging the federal, provincial, and territorial governments to update their respective access and privacy laws.

What is your position on privacy act reform? Would you see it as a priority going forward?

[Daniel Therrien]

There is no doubt that, because of the age of the legislation and the numerous technological and sociological changes since then, this legislation warrants review. A number of recommendations have been made to revise the legislation.

I think I'll stop there.

[Irwin Cotler, Liberal, Mount Royal, QC]

Just on that point, in May 2013 the former Privacy Commissioner Jennifer Stoddart set out her office's position on reform in a position paper entitled, “The Case For Reforming the Personal Information Protection and Electronic Documents Act”.

She outlined four recommendations for reform, wherein she called for the following: one, stronger enforcement powers; two, mandatory notifications of breaches of personal information; three, increased transparency on the use of exceptions under PIPEDA allowing law enforcement agencies and government institutions to obtain personal information without consent or judicial warrant; and finally four, the introduction of enforceable agreements to help organizations improve their privacy practices following an investigation or audit.

Do you share these recommendations for reform?

[The Chair, NDP, Pat Martin]

Mr. Cotler, I think we're going to have to leave that as a comment rather than a question.

However, I'll allow you to answer, Mr. Therrien, if you have a very brief response. Mr. Cotler is well over his time.