Evidence of meeting #34 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was countries.
A recording is available from Parliament.
4:45 p.m.
Bob Paulson
Yes, I have read them.
4:45 p.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
Do you agree with them, generally speaking? Do you have any concerns at all about some of them?
4:45 p.m.
Bob Paulson
Yes I do.
4:45 p.m.
Bloc
4:45 p.m.
Bob Paulson
No.
4:45 p.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
No, I read it but I did not see anything.
What are your concerns?
4:45 p.m.
Bob Paulson
We have concerns about recommendations 1, 2, 3, 7 and 10. Do you want to know what they are?
4:45 p.m.
Bob Paulson
All right.
The first one is a legislative necessity test, which may place an unnecessary burden on the efficiency that we need to exercise in collecting information. When we collect information on individuals, the judicial test that we have to meet is very strict in respect of search warrants, wiretap authorizations, and so on. This first one, then, could get in the way of the efficient collection of information.
In respect of number 2, it's my view that this is going to change the whole reason for being. The whole act would have to get changed around into a different animal. It wouldn't end up as the same act. They're not quick amendments. While we're not actually opposed to number 2, we have concerns that this is completely different from the spirit of the existing act.
As for number 3, we do privacy impacts already. We do privacy impact assessments on all data banks that we want to modify or put in place, and we consult the Privacy Commissioner on those things. So we feel it's unnecessary to create a law to require this to be done.
In respect of number 7, it seems to be a complete departure from the stated purpose of the existing act. We have concerns in respect of the legitimate criminal video surveillance of subjects, the physical surveillance of subjects. The existing DNA legislative framework seems entirely capable of moderating the privacy concerns of those individuals who may be affected by those things. It seems unnecessary and inconsistent with the spirit of the act as it now exists.
Lastly, the provisions for sharing information with countries abroad is very important—particularly in national security, but also in the control of trans-national organized crime and trans-national crimes of any nature. Mr. Justice O'Connor made some pretty clear recommendations on how we should conduct ourselves. He stated unequivocally that there was an absolute need for law enforcement to share information with international partners, but that it must be done in what I referred to as “the principled way” or, as he put it, with a view to accuracy, reliability, and origin of information. In other words, he prescribed a qualitative assessment of the nature of the information, its intended use, and the human rights record of the country in receipt of the information. We follow this prescription.
We have implemented Mr. Justice O'Connor's recommendations in respect of national security investigations. We have centrally controlled it. In fact, my job as the acting assistant commissioner is to exercise central control over all these things. So in view of the nature of the threat that we face nowadays, I'm concerned that legislating a repository for these agreements, because law enforcement is so vast....
Do you want me to stop, Mr. Chair?
4:45 p.m.
Liberal
The Chair Liberal Paul Szabo
I want to hear the last part of your comments. Please continue, even though our time is up. It's important to the committee.
4:45 p.m.
C/Supt Bob Paulson
I was on a bit of a run there, and I don't recall exactly where I left off.
4:45 p.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
You said that you did not agree but that you were already doing it. If you are already doing it, if it is your practice, why you be opposed to it?
4:50 p.m.
Bob Paulson
One cannot foresee all the circumstances that might require exchanging information with another country.
You cannot, in my view, prescribe terms and conditions that would envision every instance in which we must exchange information with friendly countries and countries that don't share our values. I think that's why Mr. Justice O'Connor stressed that principled approach to these things. That's why we're opposed to this. We need flexibility, but we also need to apply rigorously the centralized model that we follow, while remaining open to review and transparency.
4:50 p.m.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I would like to add something. I would have liked to hear Mr. O'Brian's answer but I hope that one of my colleagues will ask him the question. Those are the rules of the game.
4:50 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you, Mr. Chairman, and thank you, witnesses.
Mr. Paulson, I find both the tone and the content of your report sobering and even worrisome. On page 4 you essentially serve notice to us. You say you are not an alarmist, but you are the officer responsible for the national security of the country.
You remind us that the terrorist threat to Canada is a real and present danger and that we have been named as a country al-Qaeda intends to attack. In fact, there could be Canadians training abroad at this moment in time, getting ready to follow through with that threat.
We are one of the only countries al-Qaeda has named that has yet to be attacked—it's a sobering reminder for all of us to meet you and to have you explain that to our committee. I don't think there's anybody on this committee who wants to tinker with the Privacy Act in such a way that it's going to actually put Canadians further at risk, or more so than we already are.
I should say that when we open up legislation for review, it's to add to or subtract from, and just because there are ten specific clauses recommended to us for change, we're not limited to that. You can change everything--from the name of it, to the summary, to every clause in it, or chuck the whole kit and caboodle.
I also note, and I think I can say for every member of this committee, when you talk about child sexual exploitation, that if it ever came down to choosing between the rights of privacy of a pedophile pervert or the right of a child to be protected and safe, every member on this committee is going to come down on the side of the child. We wouldn't want to do anything that has the inadvertent consequences of enabling bad people to continue doing what they're doing.
In the few minutes we have, given your cited objections to those clauses, is there anything you would add to or subtract from the rest of the Privacy Act in order to do your job better?
4:50 p.m.
C/Supt Bob Paulson
Thank you.
The only thing I would suggest is that there be.... I don't want to appear to be pushing my luck, because we go to great lengths to comply with the Privacy Act. As you know, we also recently had trouble with our exam bank, and we got that on track and we fixed it. So we're going to slip from time to time.
There are exemptions for legitimate law enforcement activities within the act. Both the Treasury Board policies and our policies recognize the special nature of these investigative responsibilities that we carry—balancing against the need to ensure the charter is upheld. I would suggest there be a more precise recognition of the nature of operational necessities in terms of national security investigations and other serious investigations.
I'll make this short. In understanding the Privacy Act, many corporate people and other areas of government are overly restrictive in how they interpret the act and what information they are prepared to share with us as we go forward. We find ourselves often getting production orders and search warrants for matters in which I think many senior lawyers would argue they are not necessary, out of concern over the Privacy Act. But other than that, I'll limit my comments.
4:55 p.m.
NDP
4:55 p.m.
Advisor, Operations and Legislation, Canadian Security Intelligence Service (CSIS)
Yes, I'll just pick up on that point, because I think my colleague and this committee did a review of PIPEDA recently, and I know that you focused in on subsection 7(3), for example.
4:55 p.m.
Advisor, Operations and Legislation, Canadian Security Intelligence Service (CSIS)
That's one of the areas I think is a very good example of what Bob was talking about. We believe there is a capacity there. However, in some ways the chill—and perhaps I shouldn't mention the litigious nature of our society, of which we had, perhaps, an indication in the first 40 minutes of this meeting—has meant that people are cautious.
Somehow, at least in my view, it is terribly important to send a message that you should be able to cooperate with the intelligence authorities and the law enforcement authorities when you believe you can help them and when you know there is going to be proper review of that help. The Privacy Commissioner has an important role to ensure agencies are cooperating properly, not excessively, and so on and so forth.
4:55 p.m.
NDP
Pat Martin NDP Winnipeg Centre, MB
Don't those sections go as far as to be able to deputize private individuals to gather information that would otherwise be blocked through subsection 7(3), which was so controversial in our review of PIPEDA? We found in the act, through a literal or careful reading of it, that things law enforcement agencies could not do they could in fact get employers to do--search a locker, for instance, or turn in somebody they suspected. You'd be compromising their privacy rights by any other definition, but it would give extraordinary powers. Is that something you find useful?
4:55 p.m.
Advisor, Operations and Legislation, Canadian Security Intelligence Service (CSIS)
Frankly, I'd go back to my opening remarks about a process answer rather than a substance answer. First of all, you try to define it as well as possible to minimize the effect that we would be either tempted or able to do something indirectly that we couldn't do directly. The first thing you would try to do is come up with words that would ensure that wouldn't be the case.
Second, you would hopefully have a process, as we do with SIRC and the inspector general, of constant review so that if you did abuse it, it would pop up on the screen. People would be able to say, “Hold it. We think the intent of this is not being met, and we think in fact that this is being abused.” It seems to me these are not issues that necessarily lend themselves--as Mr. Justice O'Connor said in his report talking about foreign information sharing--to prescriptive rules, but rather they lend themselves to principles and then review.