Information & Ethics Committee on April 9th, 2019

[The Chair, Conservative, Bob Zimmer]

That's the last speaker I have on the list.

Is there any further discussion on the motion?

I guess we'll go to the vote.

[Peter Kent, Conservative, Thornhill, ON]

I ask for a recorded vote.

(Motion negatived: nays 6; yeas 3)

[The Chair, Conservative, Bob Zimmer]

Next up, we have the next motion.

Mr. Angus.

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

I put people on notice on April 2, on my motion:

That, pursuant to Standing Order 108(3)(h)(vi) and given the testimony provided by the former Attorney General of Canada, public office holders Katie Telford, Chief of Staff to the Prime Minister, and Ben Chin, Chief of Staff to the Minister of Finance, be invited before the Committee to answer questions related to their conduct in inappropriately pressuring the former Attorney General and members of her staff in order to secure a deferred prosecution agreement for SNC-Lavalin.

I think this motion is important. It follows up on the work my colleague offered in the previous motion, but this is about the obligation that public office holders have to respect the rule of law. If we do not abide by that simple principle, then we are an outlier state, which is why the OECD right now is monitoring Canada.

The roles of Katie Telford and Ben Chin have to be looked at, because the evidence.... My colleagues on the other side have clearly said they're not contradicting any of the evidence that Ms. Wilson-Raybould gave. Her evidence stands. Her evidence is that Ben Chin inappropriately approached her staff and attempted to pressure them on behalf of SNC-Lavalin to interfere with the public prosecution, and was told that this was unacceptable interference—which it is, under how our legal system is structured.

The question we have to ask is whether Mr. Morneau was inappropriately pressuring. The evidence, which my Liberal colleagues seem to be willing to accept in Ms. Wilson-Raybould's testimony, is that she told the finance minister to back off, that this was inappropriate and that this would certainly be a violation of the law.

The question about Ben Chin is what his obligation to his minister was. Was it to advise him on the obligations he has to meet the rule of law, to respect the rule of law, to know that he has no right to interfere with the Attorney General in attempting to interfere in this prosecution of a bribery case against SNC-Lavalin? Mr. Chin needs to be called here, not voluntarily, to say if he has anything to contradict. It's to ask him about whether he respects the code that he has been called to uphold.

The same questions need to be applied to Ms. Katie Telford. The testimony we have received—which my colleagues on the Liberal side say is not being challenged—is that, in her pressure to Ms. Wilson-Raybould's office, she said they were not interested in legalities. That is a shocking statement to make. If the Prime Minister's chief adviser is not interested in whether they are breaking the law, then we are lawless. Was she doing that because the Prime Minister didn't care about the rule of law?

We do not have the power at committee to bring in the Prime Minister. We had Mr. Butts come. Mr. Butts was forced to resign. Mr. Butts was forced to resign, he said, because he wanted to do a whole bunch of other things in life. But he was unable to contradict the testimony of Ms. Wilson-Raybould, where she said that Mr. Butts told her there was no way they were going to get through this without interference. Interference is interfering in the role of the public prosecutor.

Ms. Telford has not come forward. Seemingly—if we take the argument of my colleagues on the Liberal side—there is no contesting from Ms. Telford as to whether she said that. They don't seem to be contesting that she said she wasn't interested in legalities. She, as a public office holder, has legal obligations to uphold. We, as a committee that oversees ethics and accountability in Parliament, must ask the Prime Minister's chief of staff to come and explain herself. Is there an outside chance that she was misquoted, or does the issue of the rule of law not matter in the Prime Minister's Office?

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Angus.

Mr. Kent.

[Peter Kent, Conservative, Thornhill, ON]

I fully support my colleague in all he has said, and all that has been said in support of my previous motion.

With a scaled-down motion and with fairly powerful arguments, we have no hesitation on the Conservative side in supporting the NDP motion.

[The Chair, Conservative, Bob Zimmer]

Is there any further discussion on the motion before us?

Go ahead, Mr. Angus.

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

Just give me a second. I'm on a BlackBerry and it's sometimes slow.

[The Chair, Conservative, Bob Zimmer]

I can give you some time to think. I'm just going to talk to the witness to explain everything, while you think a bit.

Mr. Kelcey, we are still going to get to you today. We have time. I appreciate your patience. We have committee business as well, but I think we have time for everything. We had one witness who said they weren't able to make it today, so that's fine. We tried to reschedule, but that person isn't available Thursday either, and we'll get into that a bit later. Just to let you know, rest assured, we are still going to hear from you today.

Mr. Angus, are you ready?

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

Yes, I was going to read a quote from Ms. Philpott, but I was unable to bring it up.

I've seen many scandals in my 15 years. I've seen people doing dumb things. I've seen people getting caught for taking money. I've seen people, mostly men—almost all men—doing dumb things sexually that they shouldn't have done. I've never, ever, seen two people resign from the highest positions that you can imagine in the country because of an issue of integrity.

I was very struck by former minister Philpott, who had no need to give up her career for this, and who carries enormous weight in the communities I represent, I must say, for the work she did on Treaty 9. She said there are things that are bigger than your political career. It's about ethics, she said. It's about the Constitution; it's about integrity. After this scandal is all said and done, people will remember those statements and say that it is possible, within the Canadian parliamentary system, to do things with integrity, but sometimes it has a cost.

In the case of Ms. Wilson-Raybould, she clearly did not have animosity with the Prime Minister's Office. She respected them, but she was willing to give that up. In the case of Ms. Philpott, she gave up the position of president of the Treasury Board, which is an extremely high honour, in order to say that it is about a larger principle, the rule of law.

I appeal to my colleagues that this is about integrity, and it's hard. It's hard when it's your party that's in the vise grip and you are extremely loyal. Your party gets you elected. Your number one obligation is to the party that got you elected, but what you carry from that point on is your integrity. I've seen people give up their integrity because they think they're being loyal to their party, but at the end of the day what you carry through Parliament and through your career is that integrity. That's what you trade on, and that's what gets you out of trouble if you make mistakes.

I would appeal to my colleagues, based on the very clear call of Ms. Philpott, that we do this and we do it right.

[The Chair, Conservative, Bob Zimmer]

Thank you again, Mr. Angus.

Is there any further discussion on the motion before us?

We will go to a vote.

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

I would like a recorded vote.

[The Chair, Conservative, Bob Zimmer]

We'll have a recorded vote, Mr. Angus.

(Motion negatived: nays 6; yeas 3)

Thank you, everybody.

We'll get on with our witness today. I'll just explain a bit of the plan. We have only one witness, and we still have committee business at the end. It should take us until about five o'clock to get everything done, as we have only one witness.

Go ahead, Mr. Kelcey, for 10 minutes.

[Brian Kelcey, Vice-President, Public Affairs, Toronto Region Board of Trade]

Thank you, Chair.

Thanks for the explanation earlier. To use Mr. Kent's language, I am an ex-minion of provincial and municipal experience, and so I fully understand what's happening before me here, and maybe even expect it a little, so no trouble.

Chair and members of the committee, as the Toronto Region Board of Trade's vice-president of public affairs, I'm here on behalf of the board's 13,000 members. The board of trade is now actively engaged in the debate that you're engaged in about Waterfront Toronto's Quayside project and its agreement with Sidewalk Labs.

Our overall view—and I want to stress that word—is that we are happy that Sidewalk Labs is in Toronto.

We believe that investments by large foreign technology firms can play an important and constructive role in building our growing technology economy, even if the scale-up of our outstanding domestic technology sector remains a priority alongside that growth.

We believe that the process agreed to by Waterfront Toronto and Sidewalk Labs should proceed, and that any final outcome should be based on the merits or demerits of whatever Sidewalk Labs presents in its development plan, as originally intended by the process.

We believe that tearing up this process in mid-stream poses reputational risks, trade risks and legal risks. There is no cause to take those risks, since there are literally dozens of steps of approvals ahead of Sidewalk Labs on this site, leaving plenty of room to negotiate for, or act on behalf of, the public interest as this process develops.

That said, the board was not vocal with those arguments for the first several months of this controversy because our policy team wanted to address an important public policy issue first. In our minds, there is a big, awkward gap in the regulation of what we call public realm data capture. Sidewalk Labs has made it clear that public realm data capture services would be part of the business that it hopes to deliver at Quayside.

As a business organization, we believe that this regulatory gap must be filled for everyone's sake. That's why we released a short report called “BiblioTech” in early January of this year.

Our key recommendations were simple.

We argued that data regulation related to the Quayside project should be handled by a third party organization, not the project's proponents or participants.

We argued that, generally, any public realm data collected in the city of Toronto should, by law and regulation, be held by a public data hub or a public data host or trust.

We argued that a good potential host for that hub would be the Toronto Public Library, chartered as it is by provincial legislation, and that the library, as an important civic institution, should be empowered to develop recommendations on regulations to govern that hub. Naturally, the Toronto Public Library would be expected to engage other governments, advisers and stakeholders to reach those recommendations. We didn't expect that they'd be acting alone.

Enforcement of those rules should fall within the purview of the Information and Privacy Commissioner of Ontario. We recommended toughening those rules as appropriate, and that the IPC should have authority to investigate breaches of rules of that data hub if needed.

Finally, we argued that the Toronto Public Library should model any effort to capture intellectual property value from this data on the approaches used at university and post-secondary tech transfer offices. Revenue should be used to make the hub self-sustaining, even if commercialization of data was limited, as the library suggests it would be under their model if they were to take over as we recommended.

I'm happy to discuss any of our recommendations in “BiblioTech”, and the reasoning behind them, at greater length.

Suppose Sidewalk Labs actually manages to race through the MIDP approval, negotiate IP concessions with Waterfront Toronto, win desired building code changes for their tall timber construction plans, and run the uncertain gauntlet of development approvals at city hall.

Even if they walk on water, the data regulation issue we called out in January is still waiting on the other side, unless we—and by “we” I mean all of us in the larger political community—act to resolve it. If we don't, we'll wish we had soon enough, because the board has seen other examples in government and in business where agencies, actors and firms are already colliding with the same legal issues on projects of their own in situations that have nothing to do with Quayside. This issue needs to be resolved, whether Quayside carries on or disappears for some unforeseen reason in the future.

What's politically remarkable to us, and one reason why we drafted this report in the first place, is that there's actually a consensus of sorts here. Both Sidewalk Labs and its most vocal critics agree that public realm data should be regulated by governments or agencies if Sidewalk is going to commercialize public realm data from sensors at Quayside.

Both Sidewalk Labs and its strongest critics agree that public realm data, once collected, should be held independently by an external authority, be that the government, a trust or some suitable agency. They agreed on that when we called them both to see where their heads were at in November. They agree on that today, and we agree with both sides on that question.

To close, I'll note that data policy is a point of personal and historical interest to me. As a former Queen's Park political adviser—or a minion, if that's the language in the House—

[Voices]

Oh, oh!

[Brian Kelcey]

In 2001 and 2002, I worked with a great team and a great minister—Norm Sterling, for those of you who remember him—to develop a made-in-Ontario privacy regime. Those rules were meant to protect the public but also to provide a competitive and predictable environment to attract technology firms to Ontario. The draft legislation was ultimately abandoned internally months after I had left the department. I'm happy to elaborate if anyone cares.

Parliament enacted the Personal Information Protection and Electronic Documents Act nearly 20 years ago. That act is what triggered Ontario's initiative to in turn try to develop made-in-Ontario legislation that would be more applicable to Ontario's local and provincial circumstances. Here we are again, facing an incrementally different world with a new regulatory challenge in the form of anonymized and public realm data issues.

We know that on the initiative of councillors Joe Cressy and Paul Ainslie, Toronto City Council has launched an effort to develop its own data policy. Ontario is consulting on a data strategy as we speak, but ultimately the authority that created a broad framework to address these issues in the earliest days of the Internet was right here on Parliament Hill.

A national approach may be appropriate now—whether it's to empower libraries, empower municipalities or just set a common framework for the country to work with—if it leaves room for innovation, if it's balanced and if it guides local governments and provincial governments without freezing out local preferences, as the original federal legislation did.

I hope that, in any questions, I'll have the opportunity to speak to other issues on the Quayside debate. It's a complex one, but I'm sure the primary reason we were invited to join you today is that we've spoken out on the virtue of public realm data regulation and we've made it clear that the Toronto Region Board of Trade's support for this regulation can be and is a pro-business and a pro-Quayside position, just as much as it is a pro-public interest and pro-individual position in terms of protecting the rights of our customers, our citizens and our taxpayers ad infinitum.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Kelcey, and thank you especially for making us smile a little bit. Sometimes work gets pretty serious here.

[Brian Kelcey]

For sure.

[The Chair, Conservative, Bob Zimmer]

Thanks for the humour; we appreciate it.

I'll go first of all to Mr. Erskine-Smith for seven minutes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

This is in the context of a broader study on digital government and protecting privacy. Maybe you can be a little more specific about some of these key principles of data management and management of personal information that is to be collected through new sensors and new automation, potentially. When you talk about public realm data regulation, are there key principles you are looking at that you would suggest this committee recommend with respect to data management?

[Brian Kelcey]

I'm going to give you an answer that I want to say at the outset is not exhaustive, for all the obvious reasons, but a couple of things came to mind. The “BiblioTech” report was probably one of the most entertaining things the board's policy team has done. We deliberately collected everybody on our team, which at that point was, I believe, seven people, and locked them in a room for a couple of weeks, day after day, and said, “Let's think some of this through.”

One thing that's changed relative to the privacy work I was doing and the Ontario government was doing in 2001 and 2002 is, of course, that the premise of most privacy legislation around the world and data regulation is based on personal consent. A company can use this data to do whatever it does, as long as it's specific about what it's going to do with that data and as long as they obtain your consent.

Candidly, I think the rules around what is and isn't consent have evolved considerably, to a point where the market is very happy and very lax to say yes to a lot of requests for consent relative to what we expected in the early 2000s. Nevertheless, the principle of consent is still there if you're downloading an app that asks you if it can use your data, and you still have a choice to say no.

The problem with public realm data is twofold, which I think is particularly interesting for you as parliamentarians. First, it's public. You can try, but there's no reasonable way to get inferred consent, which was a big doctrinal discussion in 2001. Inferred consent is difficult to get unless you plaster a particular region with signage and so forth.

Two of the examples I usually give on this are city of Toronto cases, where there would be a public benefit to collecting the data that most voters would probably say yes to, but they're not really acting on what their sensors are picking up in terms of traffic cameras along the King Street pilot, on the one hand, and traffic cameras they're using to study traffic that could also be used to study accident sites and so forth, on the other, because they don't know what the rules are and—

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

That's an interesting point. Sorry to cut you off, but you mentioned that Toronto City Council is looking at new data policies. I'm curious about this idea, because they already engaged in this practice to some extent with open data, and they have standards. For example, when I look at the Red Rocket app on my phone when I'm waiting for the bus, I know the bus is a certain amount of time away. That's a private party that has developed that app, but it's based on open data from the city of Toronto. This isn't necessarily a new conversation.

[Brian Kelcey]

No, it's quite the contrary. Part of what I'm encouraged by, in terms of how fixable it is, is that it's not new. There are a lot of jurisdictions that are already operating on this, and you have just spoken about some of them in testimony that I read earlier. The challenge, just in Canada, is that we don't have a common standard of rules or even a consistent standard of rules to play by among a number of different federal jurisdictions in the federation. We've kind of allowed this to roll up on a very specific subset: I have my phone and I'm walking through, and I've said yes to my phone company collecting certain amounts of data on me, but what about the interaction between that phone and the sensors, or what about sensors that are picking up my movement through a particular development site? We've spoken to other developers who want to do this with their developments because they believe it's the future and they don't know what the rules are.

The public realm piece is the new piece. There's some good scope around how to limit that. There are a lot of complications where I think the tough work on this will be. We want to allow a lot of that data to be open. When we spoke to the library, they said they wanted to allow a lot of that data to be open because it's public. You're capturing it from the public realm.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

As long as it's not identifiable to an individual....

[Brian Kelcey]

Right, and that's the key, to lay down some crystal-clear rules around how to remove those identifiers, and do so in a way that anticipates the worst possible results in those scenarios. I think part of the reason this crept up on us is that Canadian federalism has its great points and it has some weak points. A weak point here is that this is a very local problem, which is one reason why we propose that the library deal with it. We're dealing with street corners here. We're not dealing with banks and federal industries—