Evidence of meeting #66 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 devices.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Daniel Therrien  Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Patricia Kosseim  Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch, Office of the Privacy Commissioner of Canada

4:35 p.m.

Conservative

Jacques Gourde Conservative Lévis—Lotbinière, QC

Have any Canadians made complaints in this regard recently?

4:35 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

We have in fact received a small number of complaints and we are in the process of investigating them. They pertain to cell phone searches by the CBSA.

4:35 p.m.

Conservative

Jacques Gourde Conservative Lévis—Lotbinière, QC

If Canadians complain about U.S. customs, is their recourse limited?

4:35 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

If a Canadian arrives on U.S. territory and seeks entry, there is no recourse.

The Standing Committee on Public Safety and National Security has, however, proposed an amendment to Bill C-23, which is currently before Parliament and would give Canadians in a pre-screening area access to a border management administrative mechanism, if not access to a court. In my opinion, that is not sufficient, but it is an improvement to the original version of the bill.

4:35 p.m.

Conservative

Jacques Gourde Conservative Lévis—Lotbinière, QC

Do you think there could be a reciprocal agreement?

4:35 p.m.

Liberal

The Vice-Chair Liberal Nathaniel Erskine-Smith

We might have time at the end for more questions.

The next five-minute round goes to Ms. Fortier.

4:35 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Thank you very much, Mr. Chair.

Mr. Gourde, I am pleased that you have started asking questions about complaints, because I would also like to know where things stand.

What type of complaints do you receive? I understand you have received a few. How do you determine whether they are valid in the present context? Has a trend emerged from these complaints?

4:35 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

In recent months or the past year or so, we have received three complaints about these practices. Under the Privacy Act, we have the legal obligation to review each complaint. Not all complaints require the same degree of rigour, but we do have to review them all.

Since there have only been three complaints, it is hard to say if there is a trend. I can say, however, that these are definitely people who have read in the media or in various notices that their devices could be searched by Canadian or U.S. authorities. People are worried about this with good cause and want to make sure that government practices are legal. So they filed complaints with us and we are examining them.

4:40 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Under the new bill, do you think you will be able to process the complaints that you might receive from Canadians in the same way? What kinds of complaints are they?

4:40 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Are you referring to the Preclearance Act?

4:40 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Yes, exactly.

4:40 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

If a Canadian has their cell or electronic device searched by U.S. customs officials on Canadian soil under this regime, we have no jurisdiction. That is under the jurisdiction of the American authorities, under the agreement between Canada and the United States.

The only mechanism under which a person could address a Canadian is the one proposed by the Standing Committee on Public Safety and National Security in the amendment to the bill that I just mentioned.

4:40 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

You mentioned the way things work in Europe. Can you think of any best practices that we could use to improve our current proposal?

September 18th, 2017 / 4:40 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Are you talking about border management in Canada rather than on the U.S. side?

4:40 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

I am wondering whether we could draw on practices from elsewhere to better protect Canadians as regards their electronic devices.

4:40 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

European law is strict as to overarching principles. We saw this in the judgment by the European Court of Justice regarding the border program. To my knowledge, European law deals with these matters according to broad principles. In general, it allows departments and government to gather information only when it is necessary and commensurate with the objective in question. To my knowledge, there is no specific rule for the application of these broad principles to customs practices. That said, we could make some enquiries in that regard.

As to the extent of border powers, the issue, in my opinion, is that there is extensive jurisprudence in Canada indicating that the expectation of privacy at the border is less than in other situations since the person is seeking entry to another country. I think this principle remains valid. It has, however, been used to severely limit if not eliminate judicial guarantees at the border.

With the advent of electronic devices, we have to ask some questions. Customs officials have the right to conduct certain searches at the border, but should that extend to searching financial records on a person's telephone, information about their intimate relationships, or the person's health, for instance? Asking the question gives you the answer. Canada needs to get with the times and treat these devices as they should be treated legally.

4:40 p.m.

Liberal

Mona Fortier Liberal Ottawa—Vanier, ON

Thank you.

4:40 p.m.

Liberal

The Vice-Chair Liberal Nathaniel Erskine-Smith

Thanks very much.

We'll go to Mr. Zimmer for the next five minutes.

4:40 p.m.

Conservative

Bob Zimmer Conservative Prince George—Peace River—Northern Rockies, BC

Thank you. It's good to be part of the committee. I'm one of the newest members here. Thanks for having us. This is such a nice introduction.

Mr. Therrien, we've talked before. We've actually been in committee before. We've talked about access to information, and about hacking, and securing of devices, etc. I guess an eye-opener for us—and I can't recall the exact date you were there—was when we were talking about what we know as the hacker of today. It's not some high school kid who's sitting at home, getting information for fun. It's organized crime that's going after our information. That's what I'm going to base my question on.

What is the height of abusing this specific information you're talking about? What have you seen in terms of the information being used or abused at the border? Have there been links to organized crime? Has it been accessed by organized crime, this information that's being sought? Have you made that link yet?

4:45 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

I haven't seen cases of this nature, but I'll say this. The essence of what the law currently allows is to collect a lot of information in the name of border safety. The possibility of criminals, hackers, and so on is a relevant consideration. I don't want to exaggerate the nature of the problem, but the more information the government collects, obviously, the more it's at risk of being collected and hacked by people with criminal intent. That, I think, is another reason that government should be careful not to collect information beyond what is necessary, and even if it is necessary, not to retain it beyond the period necessary to keep it. The government is obviously a repository of a lot of very interesting information that is of interest to people with criminal intent.

4:45 p.m.

Conservative

Bob Zimmer Conservative Prince George—Peace River—Northern Rockies, BC

Getting back to my question, have you seen examples? Maybe you can't talk about all the examples before a public committee. Have you seen examples of information that has been collected, like the instance Mr. Cullen referenced, where somebody was not allowed into the country because they had a health condition? To call that “abuse” is maybe not the right term, but what is the height of abuse that you've seen from this information that's collected? As Privacy Commissioner, can you give us some examples that you've actually seen of negative outcomes from collecting this information?

4:45 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

We've not seen many but we've seen some, and when I say some, again, this is not information collected through devices.

The example I have in mind is a public example of a lady whose information was collected by a police service in Canada during a crisis that she was under, a suicide attempt, when she called 911. That information becomes part of police records, and that information is then disclosed to U.S. border authorities in the name of co-operation between the law enforcement bodies of Canada and the U.S. It led to the refusal by U.S. officers, who did not let her in because they felt that she was at risk of either committing suicide or somehow endangering U.S. people.

That was as a result of this 911 call, but the same could happen through the search of an electronic device that would reveal a medical condition, for instance.

4:45 p.m.

Conservative

Bob Zimmer Conservative Prince George—Peace River—Northern Rockies, BC

Thank you.

4:45 p.m.

Liberal

The Vice-Chair Liberal Nathaniel Erskine-Smith

You have 45 seconds left, if you want.

4:45 p.m.

Conservative

Bob Zimmer Conservative Prince George—Peace River—Northern Rockies, BC

I'm good. Thank you.