Evidence of meeting #2 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was lobbying.
A video is available from Parliament.
Conservative
The Chair Conservative Blaine Calkins
Thank you very much.
Now we'll move to the Conservatives. Mr. Jeneroux, you have seven minutes.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Thank you very much for being here, guys. That was a good overview, especially for us members who are new not just to the committee but to the House of Commons. I think I speak on behalf of my colleagues on both sides of the table when I say that.
I want to get a sense of something from both the Commissioner of Lobbying and the commissioner of access to information, privacy and ethics. Can you help me and those of us who are new to the process to understand what steps you go through when you determine a conflict of interest? This doesn't necessarily mean that there has been a breach of the act, but what steps do you and your office start the process with so that you can then determine whether there has or hasn't been a conflict of interest?
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
You said “access to information”, but I think you meant conflict of interest.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Basically there are rules set out in both the act and the code as to when you may be in a conflict of interest, so of course the first thing is to see whether any of those particular provisions applies. Basically I must follow the wording of the code or the act in applying it. I generally have a pretty good framework within which to make that decision.
There are a few provisions in my act that talk about improperly doing something or other. That's the one area where I do have some flexibility in determining what's improper. Usually in trying to determine that, the first thing I look at is whether there are rules somewhere else—rules that are not in my act—that are not being followed. In such a case, I would inevitably find that improper, and then I would look at, in the odd case, general sorts of understandings of people as to what is just unacceptable. As I say, I'm guided largely by the wording of the act or the code.
One area, for example, that includes the word “improper“ is on post-employment activities. Certainly if something was not proper when someone was a member, the likelihood is that it will not be proper when they're in a post-employment situation.
Maybe that gives you a little bit of a sense of it.
Commissioner of Lobbying, Office of the Commissioner of Lobbying
There's nothing in the Lobbying Act in terms of conflict of interest, but there is in the Lobbyists' Code of Conduct. As I was saying in my opening remarks, the reason it's in the code and was in the previous code as well since 1997 is to assure Canadians of the integrity of the decisions being made by the government.
There are a number of ways that a public office holder could be placed in a conflict of interest. This is why I've specifically broken them out in the rules in terms of whether preferential access is being given because of the relationship of the lobbyist to the public office holder.
There is the issue of gifts. For example, is a gift being given by a lobbyist to a public office holder whom they are lobbying, or will lobby, a gift that the public office holder cannot accept? As my colleague was saying, one thing I would be looking at is whether an individual can or cannot receive a gift.
Political activities is also an area that has been broken out, following a court case in 2009. If that's of interest to the committee, I can share the details with you, but basically it involves the notion of it being not a real conflict of interest but only an apparent conflict.
There is that tension that exists between the private interests of a political office-holder and their duty to serve the public interest. That standard test, as I mentioned, is what I and my investigators would use to determine whether a conflict of interest had been created.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Thank you. That helps. I'm getting the sense that you both work in the overarching theme of preventing this type of thing.
You even mentioned that the rule can be somewhere else, and not necessarily in the act. When there are official government mandate letters, those would be considered other rules out there. I would guess that we could possibly refer to them as something like that. The government mandate letters that a number of ministers have received address this issue. They say that ministers must avoid the perception of conflict of interest. It's right there in their mandate letters.
Here's where I'm going in trying to understand this. A few instances have already been brought up in the House, and a few instances were brought up in the media. I'm curious about your current involvement in these examples and whether you see at this point in time that there's a perceived conflict of interest. I could get into the details of those cases if you like. If this is enough information for you, I can leave it at that.
Seing the perplexed look on your face, Mary, I would be happy to go into the details.
Conflict of Interest and Ethics Commissioner, Office of the Conflict of Interest and Ethics Commissioner
Let me say that most of the provisions in my act envisage a perception one way or another, but not all of them. If the mandate letters talk about perceptions, that may be a slightly broader set of rules than my act or my code might cover. However, as I said, most of the rules whereby there could be a perception aspect are framed in one place or another.
The other thing I observe is that there is an accountability guideline that the Prime Minister has put out. In many instances, that accountability guideline also goes beyond the rules of the Conflict of Interest Act. It's a serious thing to find somebody to have contravened the Conflict of Interest Act, so I don't go out of my way to make up things that aren't at least envisaged to some extent.
When I speak of the accountability guideline, I'm reminded that it's another area where I could find an impropriety. If a section used the word “improper”, I would base myself on that.
I don't know if that answers your question.
Conservative
Conservative
The Chair Conservative Blaine Calkins
Your time is up. Seven minutes goes by fast.
Mr. Blaikie, you have seven minutes.
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you very much.
I'll start by thanking everyone for coming out today.
In terms of questions, I wanted to ask the Privacy Commissioner some questions around warrantless access, which you've said you're currently looking into. I'm curious. Could you give us a sense of the kind of information, if any, for which warrantless access would be appropriate? Is there certain information about people's personal details that you think you can't really reconcile warrantless access with, and for which it would be appropriate to be consulting someone about the appropriateness of obtaining that information?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Thank you for this question.
In my remarks I spoke to transparency, which is one issue, and to what extent companies and government should disclose to the public, in broad statistical terms, how often there is a sharing of information between companies and government for law enforcement purposes.
Now you're asking the substantive question of what ought to be shared by telecommunication providers, for the most part, and law enforcement. The first place to look at on this issue, of course, is what the Supreme Court said in 2014 in the case of Spencer. In that case, the court set out excellent guidelines. In terms of companies sharing information with law enforcement, it set out that the principle is the principle of warrants. These communications should as a rule be authorized by a court, on the principle that courts are well placed to balance the interests of the police in getting that information and the interests of individuals in having their privacy protected.
The court did outline three very narrow exceptions to the rule. One in particular has to do with emergency situations. If the police are investigating a crime that is about to be committed and they need personal information, that is one exception to the warrant rule. However, the rule is clearly warrants, with very narrow exceptions.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
If that is the rule, could you speak to the question as the government looks to reforming the Anti-terrorism Act? Is additional review capability sufficient, or does there really need to be oversight in the form of an agency that would be monitoring the activity of police in real time instead of investigating after the fact?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
There's a lot in your question.
In general terms, in order to have effective protection for human rights and privacy, you need two things: oversight and review.
Oversight by Parliament will be debated according to what we see in the mandate letter. That would be an improvement over the current system.
It is also necessary that there be what I will refer to as administrative review. The review would be conducted by bodies such as SIRC, the commissioner for the Communications Security Establishment, etc. You need oversight and review, both parliamentary and administrative. This is one set of protections.
It's also necessary to have clear, substantive, legal rules as to how national security or law enforcement is to collect information. For instance, there was a question about when warrantless access is permissible by law. Normally warrants are required, except for very defined circumstances. I think you need both oversight and review, parliamentary and administrative, but it is equally important to have substantive legal rules that create the right balance between security and human rights.
NDP
Daniel Blaikie NDP Elmwood—Transcona, MB
Thank you.
My next question is for the Information Commissioner.
There has been a lot of talk recently, and I understand there are some examples from B.C. of a senior staffer triple-deleting their emails at the end of the day. It has given rise to the question of a duty to document.
Could you give us a sense of what would be adequate or how far that duty goes? What would the workload look like, or what are people being asked to document if they're working in government?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
This is also a recommendation in the report.
We've had the triple-delete incident in B.C., but before that there were the gas plant emails in Ontario. We also conducted a special investigation into the use of PIN-to-PIN communications in the federal government. There's documented evidence that there is information that should be preserved and be accessible to Canadians for accountability purposes that is either being destroyed or is not being created.
This is a key issue. It's particularly easy in the context of new technology, and that's part of the challenge that we have to deal with. In my view, the duty to document does not provide more cumbersome obligations to the government and to public servants than they already have, because they already have an obligation to document their decisions and their key actions and to preserve the information that needs to be preserved. That obligation exists in policy.
I put that into the report, but also my colleagues across Canada also did a joint resolution on that issue. We need a proper legal duty to document, so we need to heighten the level of the obligation from a policy obligation to a legal obligation. My colleagues and I are recommending to also have proper consequences for non-compliance with issues. This would apply to people who go into a meeting and don't take notes or to people who say not to document this information or to PIN them so that there is no lasting record. This is now becoming a way of conducting business in governments, and it needs to be addressed properly in a modern piece of access to information legislation.
Conservative
The Chair Conservative Blaine Calkins
Thank you.
That's the fastest seven minutes of your life, I'm sure, Mr. Blaikie.
We'll now go to Mr. Saini for seven minutes.
Liberal
Raj Saini Liberal Kitchener Centre, ON
Thank you all for coming today.
Especially being a new MP, I really appreciated the briefing on understanding the guidelines of each of your responsibilities.
Madam Legault, after reviewing your report on modernizing access to information, I was struck by one thing that I wanted to get your viewpoint on. You mentioned in your report that there currently aren't any requirements to report any unauthorized destruction or loss of information. To me it seems quite shocking.
What do you see as the consequences of leaving this part of it unchecked?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
This particular recommendation came to light because it has happened in my office that an institution came to us and said, “We will no longer be able to respond to access to information requests for the coming several months because we have had a massive technology incident.” We were grateful to have this information, because we were aware of what was going on. If we had complaints come in, we knew what had happened in the institution. It wasn't something the institution had control over. It was a security breach, and they had to shut down their computers, in simple terms.
That led us to realize that in some instances institutions have unauthorized destruction of records or data, and there's no obligation to report that to anyone. If there is a privacy breach, it is reported to the Privacy Commissioner, but if there is a non-authorized loss of data, there's no obligation anywhere to report it. That struck us as a gap in this day and age, with all of our information essentially stored in the digital world.
Liberal
Raj Saini Liberal Kitchener Centre, ON
What specific measures do you think should be in place to prevent that or to accommodate this situation?
Information Commissioner of Canada, Office of the Information Commissioner of Canada
There are measures that are in place within each government institution, IM and IT procedures, and everyone has to abide by these measures. It's a challenge for all organizations. It's a challenge when we have consolidation of email and when we have small institutions having difficulty funding and having oversight and control over their IM and IT.
There are also a lot of challenges across the federal government in terms of information management and IT management. I think the Auditor General's report of Shared Services Canada shed some light on some of these difficulties. It's something that exists at the federal level and it's something that needs to be addressed. We cannot have access to information without having proper information management practices, and proper information management practices in 2016 have to be supported by the proper IT management. That means proper funding, proper training, proper controls, and proper obligations to report when something amiss occurs.
