Information & Ethics Committee on June 13th, 2022

[The Chair, Conservative, Pat Kelly]

I call this meeting to order.

Welcome to meeting number 26 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics.

Pursuant to Standing Order 111.1(1), the motion adopted by the committee on Thursday, June 9, 2022, the committee will commence consideration of the certificate of nomination of Philippe Dufresne to the position of Privacy Commissioner, referred to the committee on Wednesday, June 8, 2022.

I would now like to welcome our witness and congratulate him on his nomination.

I will turn the floor over to him, for up to five minutes, for an opening statement.

[Philippe Dufresne, Nominee for the position of Privacy Commissionner, As an Individual]

Thank you, Mr. Chair and members of the committee.

It's a great honour and privilege for me to appear before you today to discuss my qualifications and competencies to perform the important role of Privacy Commissioner of Canada.

I will take this opportunity to thank you for all the work you do as parliamentarians in legislating, deliberating and holding the government to account.

My professional life has been dedicated to the strengthening of Canada's public institutions and to the protection and promotion of the fundamental rights of Canadians.

I have done this for 15 years in the human rights context at the Canadian Human Rights Commission. I have continued this work for the past 7 years in the context of administrative and constitutional law, in my capacity as law clerk and parliamentary counsel of the House of Commons and, if appointed, I would continue do so as Privacy Commissioner of Canada.

Prior to my appointment as law clerk of the House in 2015, I was the Canadian Human Rights Commission’s senior general counsel, responsible for the commission's legal and operational activities pursuant to the Canadian Human Rights Act, the Employment Equity Act, as well as the Access to Information and Privacy Acts.

I was lead counsel for the commission in the landmark first nations child welfare case before the Canadian Human Rights Tribunal, which led to the largest settlement of its kind in Canadian history. Prior to this, I was lead counsel in the House of Commons v. Vaid case before the Supreme Court of Canada, which remains the leading case on parliamentary privilege in Canadian law today.

In addition to the Vaid case, I have appeared before the Supreme Court on 14 occasions in cases, raising issues such as the separation of powers, the impartiality of tribunals, the accommodation of persons with disabilities, freedom of expression, and the balancing of national security and human rights.

My experience at the commission has a number of direct correlations with the role of Privacy Commissioner. It involved the promotion and protection of fundamental rights, and the investigation of complaints in an expeditious and procedurally fair manner. It required the appropriate balancing of fundamental rights with public interest considerations, and the ability to explain complex concepts in a plain language and accessible manner. It also involved working with the public and private sectors to find constructive solutions, building a culture of rights, considering international norms and comparators, and working with provincial counterparts.

In my current role as the law clerk of the House, I am the chief legal officer of the House and I lead the office responsible for the provision of legal and legislative services to the House and its members.

I have successfully defended the House’s privileges in the Boulerice v. Board of Internal Economy case, and led the legal team representing the Speaker of the House in the context of a judicial review application brought last year with respect to the House’s power to compel the production of documents.

I have been tasked by multiple committees to interpret and apply privacy law principles, most recently in reviewing proposed redactions made to documents that were requested by committees as part of their studies.

I have played a key role in the development of codes and policies to prevent harassment on the Hill and to ensure an inclusive and safe environment for members of Parliament and staff. I was proud to be the House administration's diversity and inclusion champion for the last five years.

Throughout my career, I have always placed the utmost importance on public service and on giving back to my community and my profession.

As such, I have served in various capacities in the Canadian Bar Association, including as president of the constitutional law section and executive board member of the Quebec Branch. I have also served as president of the International Commission of Jurists Canada, an institution that promotes judicial independence in Canada and internationally.

I believe in the importance of education and mentoring, and have been a part-time professor in several law faculties and continue to serve as a judge in the Laskin bilingual administrative law mooting competition.

In all my roles, I have been guided by the values of balance, impartiality, fairness, excellence, the rule of law, the public interest and respect for the democratic and legislative processes. Those are the values that, if appointed, I propose to bring to the Office of the Privacy Commissioner of Canada.

For all these reasons, I believe that I would bring to the role of Privacy Commissioner a vast and unique array of experiences and knowledge, as well as the unwavering belief that Canadians' fundamental privacy rights require strong advocacy, protection, promotion and education on an ongoing basis.

As Privacy Commissioner my vision would be privacy as a fundamental right, privacy in support of the public interest and of Canada's innovation and competitiveness, and privacy as an accelerator of Canadians' trust in their institutions and in the digital economy.

In closing, I would like to take this opportunity to thank Daniel Therrien for his outstanding service and leadership these last 8 years.

I have been impressed with all of the great work done by the OPC team during his mandate and, if appointed, I look forward to working with this dedicated group of committed professionals in protecting and promoting the privacy rights of Canadians.

With that, I would happy to answer your questions.

[The Chair, Conservative, Pat Kelly]

Thank you very much.

To begin, we have Mr. Bezan for up to six minutes.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Mr. Chair.

I want to congratulate Commissioner Dufresne on his appointment. You've always proven yourself to be a person of integrity who's highly professional. I'm looking forward to working with you in this new role.

I want to go over some of the highlights of your time as law clerk at the House of Commons, specifically the work that you did with the Canada-China special committee that studied the Winnipeg lab leaks and the case of parliamentary privilege that you argued on behalf of Parliament.

Can you talk about that in the context of the Privacy Act? Can you talk about that with regard to parliamentary privilege and the supremacy of Parliament, as well as the committees that you're before right now and the work that we do?

[Philippe Dufresne]

I think the cases on parliamentary privilege and my work as law clerk have shown that courts have recognized, rightly, the fundamental role of Parliament, the fundamental role of the House and its committees, and the need for the House and committees to have the ability and the powers to do their work and to do so in cases covered by privilege in an autonomous way that's not going to be subject to review elsewhere. At the same time, I've always advocated to the House and committees that having this authority and this power is something that ought to be exercised responsibly, having regard for the public interest consideration and turning your mind to this.

In the context of privacy, there are similar aspects there, where I firmly believe privacy to be a fundamental right and it has to be protected. At the same time, I don't see privacy as being opposed to the public interest or to innovation. You can have both—you need to have both—and, as commissioner, I would work towards that goal.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

As you know, the Public Health Agency of Canada president at the time, Iain Stewart, refused to table those documents and was called before the bar in the House of Commons to be admonished by the Speaker.

Do you believe that was an appropriate and consistent way of dealing with that individual, as well as protecting the integrity of Parliament?

[Philippe Dufresne]

The assessment of the appropriateness of House or House committee decisions I would leave to the House to make. What I've said to committees is that they have the authority and the House has the authority to request documents. When they don't receive those documents, the House has certain powers, including taking steps as it did in this case. However, it is up to the House and it's up to committees to decide.

It's not going to always be appropriate, and that's what privilege recognizes: That it is a decision for the House to make.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Because the government refused to hand over those documents and—

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I have a point of order, Mr. Chair.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Make sure you stop the clock, please.

[The Chair, Conservative, Pat Kelly]

Yes, the clock is stopped.

Ms. Khalid, you have a point of order.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I'm questioning the relevance of this line of questioning. Mr. Dufresne's here as the Privacy Commissioner. I'm not sure why we're questioning him with respect to his role as law clerk.

[The Chair, Conservative, Pat Kelly]

That's precisely the purpose of the meeting. It's to review the CV and the professional background of the candidate. Yes, we always need to make sure that our questions are relevant, but I think that's the purpose of the meeting today.

Go ahead.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you, Mr. Chair.

Just before you turn on the clock, in rebuttal to that point of order, this committee is definitely on the issue of looking at the credentials, the experience and the background of a government appointee. That's the reason we're having this committee meeting under the Standing Orders and under—

[The Chair, Conservative, Pat Kelly]

Thank you, Mr. Bezan. I've ruled on it. I think that will be enough.

Your clock is running. Go ahead.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I'll continue on, Mr. Chair.

Going back to this, the government took the unprecedented move of refusing to hand over the documents and then, ultimately, threatened to take Parliament—the House of Commons—to the Supreme Court of Canada. As law clerk and parliamentary counsel of the House of Commons, you would have been in the position to make the argument in front of the Supreme Court.

If it hadn't been for the election, would you have been in preparation for that? How would you have argued the case to protect the supremacy of Parliament?

[Philippe Dufresne]

In representing the Speaker of the House in this matter, we did in fact file written submissions to the Federal Court. We took the position in that case that the House had the authority to do what it did, and that the authority had not been limited by the adoption of the Canada Evidence Act. That matter was discontinued following the dissolution of the House.

That's where it went in terms of the court process.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Although the House was dissolved at that time and that Parliament came to an end, do you believe that is still considered a breach of privilege of the Parliament of Canada and that this should still be dealt with down the road? Does it undermine the constitutional validity of the House of Commons?

[Philippe Dufresne]

I think in this matter the House made its decision. A challenge was brought, and the House and Speaker made a ruling and filed legal representations in court setting out what I, as law clerk, took to be the proper legal view, which is that the House had the legal authority to do what it did and it had not been constrained by the Canada Evidence Act.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Thank you.

Commissioner, you and I were chatting before committee about the new technologies and about the work that this committee has already been undertaking in terms of mobility data, facial recognition and artificial intelligence. As you look ahead, how do you view your role as it relates to modernizing current legislation and regulations, keeping up with the changing times, and how that impacts Canadians' privacy?

[Philippe Dufresne]

This is a very important time for privacy, which is one of the many reasons I was interested in being commissioner. There needs to be modernization of the two fundamental privacy laws: the Privacy Act and PIPEDA. Parliamentarians will have a role to play, the commissioner will have a role to play, and stakeholders and industry will as well, but this is a priority. As commissioner, I look forward to putting forward the values that I've set out here today in comments with respect to potential new legislation tabled in the House.

Outreach is very important to me. I believe Canadians need more information about privacy. Commissioner Therrien did great work in that respect, and I look forward to continuing that. The report that this committee has issued on mobility is a good example of a document that can serve to educate and to explain those concepts that are complex but that touch literally everyone. This is something I would be working toward.

[The Chair, Conservative, Pat Kelly]

Thank you.

Mr. Fergus, you have up to six minutes.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much, Mr. Chair.

I'd like to begin by congratulating Mr. Dufresne on his appointment and welcoming him.

Mr. Dufresne, I have been following your career with great interest for several years. I must tell you that I cannot think of a better person to occupy this important, and even sensitive, position.

Mr. Dufresne, I have a few questions to ask you.

My colleague Mr. Bezan mentioned your previous career as a parliamentary counsel of the House of Commons. Personally, I would like to focus on your experience as senior general counsel of the Canadian Human Rights Commission.

How does this role serve you as Privacy Commissioner?

[Philippe Dufresne]

Thank you very much, Mr. Fergus.

I think my role with the Canadian Human Rights Commission will serve me in good stead. It has trained me well, because there are many similarities between this mandate and that of the Privacy Commissioner.

The Canadian Human Rights Commission deals with fundamental legislation. It deals with fundamental rights of Canadians, which must be protected and interpreted in a broad and rigorous manner. At the same time, we are talking about a law that must be interpreted in the real world, taking into account public interest considerations and consequences. We need to ensure that there is a better understanding of this legislation, both for Canadians and for industry and governments. It is a matter of using several tools to achieve the goal of protecting and promoting these fundamental rights. These tools can be education, interaction and prior agreements. They can also be policies or laws, complaint mechanisms, as well as legal decisions. There is a multitude of potential tools.

At a time when technological change is having such an impact on our society, it is important to consider all of these tools and the proactive tools. I gained this experience at the Canadian Human Rights Commission where I dealt with pay equity cases, among others. These were cases that resulted in huge compensation awards for employees who had been discriminated against. It took a lot of time, and it required complaints. We saw this in the new Pay Equity Act, which is a more proactive model.

I think this combination of proactive tools and complaint systems, all based on a law model, has similarities with my new role and will have trained me well. My experience pleading before the higher courts, including the Supreme Court, has served me well. This experience is useful in communicating complex concepts in a simple and accessible way for all Canadians.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I'm going to continue in that vein.

You mentioned that this role also exists to determine the privacy rights of individuals in relation to their government.

When you got the call about your candidacy, I imagine you began to visualize your role in this position. What should be the scope of your responsibilities, not only for the privacy of Canadians in relation to their government, but also for the privacy of Canadians in relation to the private sector?

Some say we live in an age where people's privacy is threatened by all the software, by all the private companies that examine and monetize all the personal data of individuals.

How do you see your role in this aspect of privacy?