Public Safety Committee on May 7th, 2009

[The Chair, Conservative, Garry Breitkreuz]

We'll have to wrap it up there.

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

It's funny, but at the very end, if I had had the time, I would have asked the question that my colleague just asked. Perhaps I could talk to you about this right now.

The O'Connor report does not contain any suggestions in this regard. Even so, there was a bill tabled by Ms. McLellan of the previous government, which was intended to set up this kind of committee. Since then, nothing has happened.

Concerning the questions from Mr. Oliphant, I think it is essential for us to categorize people that police officers are investigating. Be it investigations into organized crime or more of an investigation relating to national security, when the police suspect people, it is important for the other police forces to know that these people are under suspicion. Even if the police officers do not yet know whether the suspicions are justified or not, suspects must be categorized when criminal intelligence is being analyzed.

For example, we talked about persons of interest. In my opinion, Mr. Arar was one. However, there are thousands of people of interest who are not terrorists. If we met them under other circumstances, or if we observed them, we could verify if there was something else that could justify taking them from the "person of interest" category and placing them in the "suspect" category, or moving them from the "suspect" category to the “confirmed person" category or the "people we are sure of" category.

I would like to hear Ms. Stoddart's opinion on this. In my opinion, such categories should remain secret, because if the person has been put in the wrong category, and if we want investigations to go somewhere, we must not let people know that they have been slotted into a particular category and are under investigation. Such suspicions can be passed on to other countries or to agencies of other countries.

[Jennifer Stoddart]

In my opinion, you have raised an important issue, namely, the type of categorization that both the police and people working in national security need to do. The message that I would like to give you today is not that any type of categorization is prohibited under the Privacy Act, far from it. It is absolutely essential that our security forces do this type of classification. The problem that we have raised and which results in a contravention of the Privacy Act and in a breach of citizens' rights occurs when categorization is inaccurate and false.

I will go back to my example of the review we did pertaining to the RCMP's exempt data bank, which existed at the same time that the Arar Commission was doing its work. If we had not had the authority to audit that exempt bank, there would have been all kinds of inaccurate audits, and the name and identity of several thousand Canadians would have ended up in an exempt data bank, because these individuals would have been persons of interest to the RCMP. When we began our audit, the RCMP was the first to admit that this data bank had not been cleaned up. It's possible— and we were not able to ascertain whether or not this was the case— that there were repercussions for individuals whose name had been in this bank for five or six years at the time of the audit.

I completely agree with you that we need to move persons from one category to another, but this has to all be based on facts.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

One thing we can certainly agree on is that it's also important that rigorous practices be adopted, not only to ensure people's safety but also to protect them from unfair suspicions. That's what was missing in the Arar case, which, as we well know, had a disastrous outcome. I believe that in the other three cases as well, the process lacked rigour from the outset.

Ms. Stoddart, I would like to know your opinion of the practice of disclosing the legal files of Canadian citizens to other countries. In your opinion, should we be readily sharing citizens' legal files, using the quickest methods available, like the computer? If not, what precautions should be taken before such disclosures are made?

[The Chair, Conservative, Garry Breitkreuz]

Please be very brief.

[Jennifer Stoddart]

Under the terms of the Privacy Act, there has to be an agreement or an arrangement. In the work that my office has been doing in the area of national security, we have noted that, over the past five years, there often has not been clearly defined parameters. Rather, we have seen informal exchanges whereas the legislation more or less says that the agreement needs to clearly define what can be exchanged and why. Informal exchanges that happen on the spur of the moment, without any forethought, can pose serious privacy risks.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll go to Mr. Richards now, please, for five minutes.

[Blake Richards, Conservative, Wild Rose, AB]

Thank you. I appreciate your being here today.

Obviously privacy issues are very important; privacy is one of the important rights that we as Canadians enjoy. Of course, we have to balance this right with others, such as the right to safety and security. I'm sure you're well aware of that. I appreciate the detail and the thought you've put into some of the recommendations you've brought forward to us today.

Of course, when we look at recommendations such as these, we always have to be mindful of the costs involved. When I say that, I talk about not only financial and logistical costs, but also the opportunity cost. As an example, for every minute that the RCMP spends on paperwork or ensuring that we're not unduly invading anyone's privacy, there is an opportunity cost to it; it gives away some of their time that could be spent investigating. We always have to be mindful to make sure we find the right balance.

That's where I want to go with my questions to you. I'm sure someone who has put as much thought and detail into recommendations as you has certainly thought about those logistics and the costs, including opportunity costs, involved.

I will point to just a few of the recommendations in your report: talking about requiring within security agencies enhanced training around the theory and practice of privacy; appointing chief privacy officers across government; providing the Commission for Public Complaints Against the RCMP with the resources required to deal with privacy issues; talking about the Treasury Board and ministers issuing new policy requirements for their departments, especially around thorough privacy impact assessments; talking about increasing the resources of committees such as this one and the Senate committee. These things all have costs, be they financial costs or opportunity costs.

I'm wondering how much thought you have put into what kind of new resources would be required to implement these recommendations and how much these recommendations would cost, and whether you have thought about their implications in terms of balancing privacy with other activities that these bodies and agencies can and should be doing as well. Give me a bit of a sense as to what you see the cost here being, in terms of resources, finances, and also opportunity costs.

[Jennifer Stoddart]

Okay.

[Blake Richards, Conservative, Wild Rose, AB]

I know that's a broad question to ask. Maybe you want to focus on one or two of the recommendations I've indicated.

[Jennifer Stoddart]

Yes, thank you.

Mr. Chairman, my office isn't really equipped to evaluate the cost of these various recommendations. I believe the Treasury Board is.

Perhaps the point I could make to this committee is that the opportunity costs are the important factor to look at. If we had invested in, for example.... Mr. Cavalluzzo mentioned that in 2001 the RCMP, having been out of national security, all of a sudden—whoops!—came into the field, and the people were not trained. If they had been trained in information management practices and if there had been a chief privacy officer, perhaps much of the saga that in the end was very costly to the Canadian public might have been avoided.

I think my colleague wants to briefly add something.

[Chantal Bernier]

I would submit to you, first of all, that we need to talk about or at least consider the cost of not doing it.

Secondly, we know , for example, that since the advent of the Charter of Rights and Freedoms, we have seen that the added rigour that consideration for human rights brings to police investigations has, indeed, added a gain in efficiency both in terms of cost and opportunity, as you suggest.

[Blake Richards, Conservative, Wild Rose, AB]

Could you give me some examples of how that is in fact the case? I'm not disputing that it is, but—

[Chantal Bernier]

For example, a police officer will not inundate himself or herself or a file with unnecessary information, but will be much more focused, that focus perhaps being initially brought on by considerations for privacy, but leading to a much more efficient investigation process.

[Blake Richards, Conservative, Wild Rose, AB]

I'm not disputing what you're saying at all, but there are always two sides to the story. That could be true, and I think it may very well be, but there also could be the other side of it: that sometimes it may be they're spending time being concerned about ensuring privacy, and this takes away some of the information they could have used in an investigation.

[The Chair, Conservative, Garry Breitkreuz]

We'll have to wrap it up there. I'm sorry. We have eight minutes left. Can we split it--four minutes and four minutes?

Mr. Kania, go ahead.

[Andrew Kania, Liberal, Brampton West, ON]

Madam Stoddart, in your May 7, 2009, submission, “Rights and reality: enhancing oversight for national security programs in Canada”, you indicated that “The recommendations from the O'Connor Policy Review have yet to be implemented”. Are you aware of the fact that the government takes the position that they have all been implemented except for the overall supervisory organization?

I have a quote here. As far back as when Stockwell Day was the public safety minister, he indicated, in responding to Commissioner Iacobucci's report, that O'Connor's recommendations have, in fact, all been implemented. He also stated that there had been considerable progress towards designing a new model for review, on which there would apparently be a public announcement in the near future. That was when Stockwell Day was public safety minister.

I'm wondering if you have seen any evidence of any implementation of any of the three recommendations.

[Jennifer Stoddart]

I am aware of the differences of opinion between my statement and the government statements. That's from our various perspectives, I being a parliamentary watchdog agency.

What I mean is that the recommendations have not been fully implemented, and we do not see them being operational. We do not see any kind of oversight and review committee, which is the main focus of my message to you today.

I am aware, however--and I think in that sense it explains the government's position on this--that work is being done on this. Work is being done within the government. I mentioned that we had been consulted on draft directives for more appropriate information sharing within the government. We also have been told that work is being done within Public Safety Canada on an oversight committee.

Indeed, my colleague, who was there until six months ago, can speak to that.

[Andrew Kania, Liberal, Brampton West, ON]

You would all presumably agree with me that when former Minister of Public Safety Stockwell Day indicated, quite some time ago, that all the recommendations were implemented, that would not have been accurate. Would you all agree with that comment?

[Jennifer Stoddart]

I have not seen all the recommendations from the O'Connor inquiry implemented, some of which had to do with a committee that I don't believe is in existence.

[Paul Cavalluzzo]

I think we have to be cautious here. I don't know if Minister Day was talking about part one. If he was talking about part one, then perhaps all those recommendations have been carried out. As far as part two is concerned, clearly that hasn't happened.

We have to look at the context of his statement as to what he was talking about.

[Andrew Kania, Liberal, Brampton West, ON]

Let's discuss that. Obviously part two has not been implemented. We all know that.

[Paul Cavalluzzo]

That's correct.

[Andrew Kania, Liberal, Brampton West, ON]

In terms of part one, do you have any proof or evidence that they have been implemented?

[Paul Cavalluzzo]

No, other than the statement of a cabinet minister, and I would rely on that statement.