Information & Ethics Committee on June 3rd, 2014

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Through that time, obviously, it goes without saying that you've been a public service adviser to both Liberal and Conservative solicitors general and ministers of justice. Have you ever had a problem reverting when it went from a Liberal government to a Conservative government? Have partisan politics caused you difficulty in how you approach your job?

[Daniel Therrien]

No. I'm a public servant. I believe, as I said, in the public service; I have a passion for it. I have a passion for human rights. I have served, as a public servant, Conservative and Liberal governments, and I haven't had any problem with that.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I only bring that up because I have been pleasantly surprised at the level of support that we've obviously received from the Liberal Party on this, and in particular those people who actually had the opportunity to work with you during their time in government. They've been able to provide a lot of I think important information with respect to your qualifications.

I noted yesterday.... I found it a little disturbing that the leader of the opposition called you “creepy”. He said that Canadians would find you creepy—

[The Chair, NDP, Pat Martin]

Mr. Angus.

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

On a point of order, I think my honourable colleague would want to correct the record.

He never made a personal slight against Mr. Therrien. He said the appointment was creepy. He never said that Mr. Therrien was creepy.

I think that's a very over-the-line statement. He'd probably want to withdraw it.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

As I was saying, the leader of the opposition, in a question yesterday in the House of Commons, said that Canadians would “find it more than a little bit creepy that...this guy”—presumably you—wants to protect their privacy.

The general theme from the opposition has been that you have no ability to separate the work that you've done in the public service, that whatever you've done in the public service you will carry on through as the Privacy Commissioner.

How do you respond to that?

[Daniel Therrien]

I would say that I am a lawyer by trade, and public servant, and I'm guided by the law. I always have and I always will.

I would leave it at that.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

In your time in public service, have you ever been afraid to express your opinion to either Conservative or Liberal ministers of justice? Have you ever been so terrified of the minister that you've thought that to do your job you'd better just be quiet and say nothing?

[Daniel Therrien]

No. I've had actually occasion to give advice to ministers that what they were proposing to do might be illegal, unlawful. I've never shied away from that, always trying to provide a lawful alternative to achieve the policy objectives needed.

But when needed, I have on occasion, on several occasions, I would say, given that kind of advice to ministers.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Okay. Thank you.

Mr. Chair, I have the following motion:

That, pursuant to the Order of Reference of May 28, 2014 and Standing Order 111.1(1), the Committee report back to the House that it has considered the proposed appointment of Daniel Therrien as Privacy Commissioner of Canada and recommends that he be confirmed by the House of Commons of Canada’s next Privacy Commissioner.

[The Chair, NDP, Pat Martin]

Thank you.

Just for the record, the interim Privacy Commissioner appointment ends today. I think there was some confusion about whether there is a Privacy Commissioner in effect.

The motion is in order. It has been submitted. We will finish the rounds of questioning, I suppose, and deal with that at the end....

No: it's been moved, so it has to be dealt with now, I suppose.

Mr. Angus, on the motion.

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

Thank you.

I would like to begin with my sincerest apologies to Mr. Therrien. I think this began as a very fascinating discussion, and I believe that you are being set up here. We have less than an hour to discuss with you some very serious issues. These are issues that you obviously take seriously. You understand there's a complexity of issues, yet we are seeing this being rammed through without a chance to really delve into them.

This appointment will be forced through as the interim commissioner, Chantal Bernier, leaves her post today, and we've seen no remote indication from the government that they will hear from any of the privacy commissioners on Bill C-13. Bill C-13 will be the defining issue of privacy in Canada for this coming term.

Today we have begun to get a sense of where we would go with you as Privacy Commissioner and what your concerns would be. First you did not want to talk about splitting the bill, but then, when you reflected on it, you agreed that splitting the bill is important, because this is about ensuring that due process is done.

We're talking about constitutional rights. We're talking about the basic rights to privacy. We're also talking about issues of security. This is not a circus. This is something that needs to be reflected on.

We asked about the fact that the Conservatives have raised the trial balloon that a cop's spidey sense is all that's needed to gain private information from Canadians. You clearly suggested that you were concerned with that.

I would have thought that having an opportunity to have you come forward and talk more about this would allow us to understand what's at stake here.

Yesterday we had three of the privacy commissioners from across Canada raise very serious concerns about this government's attempt to push through Bill C-13 without hearing from the Privacy Commissioner of Canada, the commissioner's staff, or other privacy commissioners in the country. They said, “given the heightened and pressing interest in Bill C-13, we urge the Committee”—this was the committee for justice and human rights—“to postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill”.

You certainly indicated you would be willing to do that, and you shared their interests.

Mr. Therrien, this has nothing to do with your qualifications, but this has everything to do with credibility regarding the independence of officers of Parliament to do their job and to be accountable to Parliament. We're not questioning who you are or what your history is, but we need to know and we need, within Parliament, to have that opportunity. I hear what you're saying, and I think you understand that an independent officer of Parliament has to be able to speak to the broader issues rather than to the short-term partisan agendas of any government.

I'm very disturbed at this time that these issues have been raised, issues regarding warrantless access and the concerns that you yourself have raised, coming out of the justice department, about the threshold that has not been proven for gaining access to Canadians' private information.

I do want to apologize for not hearing you correctly when you shared Ann Cavoukian's concerns that an IP address is not the same as a phone book. We've heard from this government again and again and again that if they just call up and they can get that information, it's like looking in a phone book. You, on the other hand, have identified, coming from your Justice background, and the privacy commissioners have identified from their expertise that this is basically the digital profile, the digital fingerprint of every Canadian as to who they are, what they do online, and where they can be located at any given time. That warrantless information needs a higher level of scrutiny.

Now, are there cases in which there are safety issues at stake? Certainly. We know about the issue of telewarrants and the need to be able to move. We know that if an immediate violent crime is in play or there is an issue of terrorism, police are able to access that and the telecom companies turn it over. However, my colleagues over on the other side say that every single case of the 1.2 million requests that were made last year—which we find an extraordinary number—was only to deal with terrorism and violence. I'm wondering, given your background in Justice, whether you think Canada is such a dangerous place.

So, we cannot go through with this motion at this time, because we have not had the chance to bring forward the people from civil society, the people who are experts in this field.

Mr. Therrien, this has nothing to do with you and your position.

We note that the last time a Privacy Commissioner was appointed under a Liberal government, a committee that was chaired under a Liberal government said that two meetings were not enough and that there needed to be a process in place, because this is about ensuring the constitutional rights, this is about ensuring public safety, and this is about ensuring where Canada stands in the global community in terms of privacy.

We did not even get to the issues of data breach. We don't have the time. We didn't even get to the next round of questioning, because this government does not want to have that.

I'm very sorry, Mr. Therrien, that this is being played out on your watch. I think it has the potential impact to damage your ability to do your job, because of the tainted manner in which this government has approached this.

[The Chair, NDP, Pat Martin]

On the motion, we have a speakers list.

Mr. Ravignat.

[Mathieu Ravignat, NDP, Pontiac, QC]

Thank you, Mr. Chair.

Of course, I share many of the concerns that my colleague has, as well as some sympathy for your situation, Monsieur Therrien. Clearly, 45 minutes to be able to ask you some questions, when in the past at least two hours and witnesses were allowed when dealing with the nomination that's as important as yours....

Our privacy laws are antiquated, as you know, and the person who we choose going forward in the post-Facebook world is going to have to review our laws. Therefore, your appointment is crucially important for the privacy of Canadians, and of course I decry the fact that we've been given only the time that we have.

That is the reason why I gave this notice of motion at the last meeting: “That, pursuant to Standing Order 111.1(1), and subject to the order of reference of May 28, 2014, the Committee undertake a study of no fewer than 4 meetings to examine all matters regarding the proposed appointment of Daniel Therrien as Privacy Commissioner of Canada, that the committee invite Daniel Therrien to appear”—which you have, but only for an hour—“and that the Committee report its findings and recommendations to the House...”.

I also suggested in the motion that “the Committee invite the former Privacy Commissioner of Canada”—who you suggested was probably a good resource when dealing with all issues of privacy—“Jennifer Stoddart, and the Interim Privacy Commissioner of Canada, Chantal Bernier, to assist the Committee in its study of the proposed appointment of Daniel Therrien as Privacy Commissioner of Canada...”. Finally, I suggested that “the Committee invite legal and constitutional experts, and other experts in the protection of privacy, to provide testimony regarding the proposed appointment of” yourself as Privacy Commissioner.

It seems like this is the minimum we could do when we're dealing with overhauling a law that is going to protect the privacy of Canadians for generations, as well as the role of the Privacy Commissioner in the future.

Mr. Chair, what I don't understand is.... Perhaps I'm not fully in agreement with the process here. I had given notice of motion, and I thought that, following due process, we would discuss these motions before any other motion was on the floor. That is my understanding of the process. If so, I think this is the motion that we should be debating presently, and not the motion to approve the nomination of Mr. Therrien.

Thank you.

[The Chair, NDP, Pat Martin]

On that, Mr. Ravignat, you served notice of motion, but you did not choose to move the motion at the committee. Mr. Calandra moved a motion that was in order, so therefore that's the motion currently under debate.

Does that conclude your remarks?

[Mathieu Ravignat, NDP, Pontiac, QC]

Mr. Chair, I do have a question about that.

[The Chair, NDP, Pat Martin]

That's my ruling on the point of order.

[Mathieu Ravignat, NDP, Pontiac, QC]

I just have a question, a point of information. We did agree to debate one of the motions that I set down, and therefore there was agreement that the motion was tabled. If not, there couldn't have been a debate on that motion. If you check the record, Mr. Chair, I do believe that we did have a debate on the motion, and we never voted on this motion. In my opinion, the motion is still open and further debate is necessary before we entertain any other motions.

[The Chair, NDP, Pat Martin]

Let me consult with the clerk, Mr. Ravignat.

We're somewhat limited in what we can share, because the planning that led to the holding of this meeting took place at an in camera planning meeting.

Your motion was read into the record; your notice of motion was introduced while we were in public, and therefore it was circulated, etc. But to our recollection, at no time did you formally move your motion. In fact, it would have been out of order in the general context. And in the subject of a planning committee, in the in camera context, the decision was made by committee that we would hold a one-hour interview with Mr. Therrien to discuss his nomination and to subsequently ratify or deny the nomination, to affirm or not affirm the nomination.

A motion has been made. Mr. Calandra's motion is in order. We're currently debating that motion.

We interrupted you, but if you're finished your remarks on Mr. Calandra's motion, we'll move on to the next speaker.

[Mathieu Ravignat, NDP, Pontiac, QC]

Well, I'm finished apart from saying that this was kind of a ridiculous process to have 50 minutes to deal with a nomination of this importance to the history of privacy law in this country and to privacy matters in this country.

However, I do thank Monsieur Therrien

for joining us today.

That's all, Mr. Chair.

[The Chair, NDP, Pat Martin]

Next on the speakers list is Mr. Calandra himself.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I'll be very brief.

I don't know if we want to release the witness, Mr. Chair. I'm not sure how long we'll be doing this. It's probably unfair to have him sit here while we deliberate; it's not like he can respond. So if you want to consider releasing him, that would be great.

I will say this, Mr. Chair. My opposition friends talk about the process. As you will know, they actually rejected the nomination of Mr. Therrien before he actually appeared before committee. The moment he was suggested as the next Privacy Commissioner, they actually outright rejected his appointment. They did the same in the House.

I'm not certain what continuing on...with respect to an investigation, as to why the NDP rejected an appointment before they even had the opportunity. So now they want to bring it to committee and have an extensive study. But when they...before they had the opportunity to do this, they had chosen to just reject outright.

I suspect that Mr. Therrien could walk on water and the NDP would outright reject him. I don't see the point of sitting here for four days on something that they rejected in advance of even hearing from the witness.

With respect to certain bills that are before the House, if he's approved as the commissioner, we'll have many, many years and many opportunities for him to appear before committees to provide testimony and his thoughts on that.

I note that our members on this side did review his resumé. We reviewed his career in the public service. We did take the opportunity to speak to not only our ministers; I took the opportunity to speak to former Liberal cabinet ministers who had the opportunity to work with Mr. Therrien to get their advice with respect to what they thought about his appointment.

We've done all of that, Mr. Chair. Based on all of that work to this point, we're prepared to move forward and undertake a vote on the motion.

[The Chair, NDP, Pat Martin]

Thank you, Mr. Calandra.

To be fair, any time I've sat at one of these committee meetings dealing with the nomination of an officer of Parliament, the nominee has always expressed that they couldn't possibly do their job without the full confidence of Parliament. What you've heard today, in all fairness, expresses concern about approving this particular nomination.

Are there any other speakers on Mr. Calandra's motion?

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, Mr. Chairman, I find myself in a difficult position here because, on the one hand, I know Mr. Therrien. I know of his qualifications. As I said, I've had the benefit of working with him. On the other hand, I don't believe in short-circuiting a process of such importance and having only one hour for his appearance, let alone any other considerations that might have otherwise been given, and as said, was the process at the time I served in the Liberal government.

My concern is that if I were not to vote for the motion, it might be inferred as my not supporting Mr. Therrien, which I do. On the other hand, if I vote for the motion then it might be inferred that I'm satisfied with the process as it's been undertaken. That's why I think we've been put in a quandary in this regard, and I regret that it had to lead to this.

[The Chair, NDP, Pat Martin]

Thank you.

Just to be clear, Mr. Calandra's motion suggests that the committee report back to the House that it has considered the proposed appointment of Daniel Therrien as Privacy Commissioner of Canada and recommends that he be confirmed by the House of Commons as Canada's next Privacy Commissioner. It makes no mention of the process, of course, but I understand your point.

Mr. Ravignat.