Information & Ethics Committee on Aug. 8th, 2022

[Ryan Williams, Conservative, Bay of Quinte, ON]

With regard to your office and your knowledge, when it comes to all of this new technology that we're using, are you aware of who approves this information? Is it the RCMP themselves, or are any offices of the government involved at all, for instance, is Public Safety, etc., involved in any procurement of that technology?

[Philippe Dufresne]

I'm not sure of the internal workings. This is a question that should be properly asked of the RCMP.

I've seen the information they gave and the question on the Order Paper.

[Ryan Williams, Conservative, Bay of Quinte, ON]

When we talk about this technology—and we went through this with your predecessor before with regard to facial recognition and cellphone mobility data—does it concern you that a general warrant with this kind of technology is all that's necessary to remotely access someone's phone, and the microphone or camera?

[Philippe Dufresne]

Again, I will want to know the details from the RCMP in terms of which warrant and which authority they are using. If it is part VI of the Criminal Code, there are more safeguards there in terms of authorization and notification to the person after the fact. This is going to be part of what we look at to see if it's enough and, if this is used, if it's this one, if we need to strengthen it with other means, but part VI in the Criminal Code does have a number of safeguards built in.

[Ryan Williams, Conservative, Bay of Quinte, ON]

We know that this technology has been used in the U.S., and it's no longer allowed to be used in the U.S.

This will be my last question, Mr. Chair.

Would you have concerns on its use in general just from knowing what you know right now, and what would those concerns be?

[Philippe Dufresne]

My concern is making sure that this type of technology is looked at from a privacy angle and that it be looked at carefully to ensure that it doesn't go further than it needs to in order to achieve the necessary public interest at play.

This is something we'll be able to do once we see the details of the specific tools as well as the uses, the purposes and the safeguards.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Thank you, Mr. Chair.

[The Chair, Conservative, Pat Kelly]

Thank you.

Ms. Khalid, you have up to five minutes.

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

Thank you very much, Chair.

Thank you, Monsieur Dufresne, for being here today.

I will start by going back to something you said that I want to clarify. I believe you said that, to your knowledge, there is no Pegasus-like tech that is being used, that you're aware of, by government departments. Is that right?

[Philippe Dufresne]

I think Pegasus itself; I think I was referring to this program, and to my knowledge it is not used by any government agencies.

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

Sir, you have a lot of experience. On a world scale, where does Canada place in its protection of the privacy of Canadians from mass surveillance or the use of Pegasus-like technology in surveilling Canadians? Where does Canada stand in the world?

[Philippe Dufresne]

I think Canada has a number of safeguards. The role of my office is to ensure that we can make them stronger and to promote making them stronger. We've called for law reform for the Privacy Act to modernize it so that it catches up to new technology. There is Bill C-27, which is currently before the House in terms of private sector privacy.

We value privacy as Canadians, and I think it's something that has to be top of mind. That's why I say that privacy is a fundamental right. It has to be so. It has to be seen as such. It is not an obstacle to the public interest. It has to be there. It has to work with the public interest, but it has to be something that we communicate and we address to build trust for Canadians.

I think we have a strong system. I think it could be stronger. I think it's important that it be world class and that it be the best system in privacy. It's a fundamental right, and it's fundamentally important for Canadians.

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

Thank you.

You just mentioned the use of such surveilling technologies by private organizations. I know that in the news we heard recently about the Awz group, which former prime minister Stephen Harper has been deeply involved with. There's technology such as Corsight, which uses facial recognition software, or viisights and their behaviour recognition software.

Are you concerned about how those technologies being developed are being used by private companies, and whether we should be doing more? You just mentioned Bill C-27 as well. Perhaps you could expand on that.

[Philippe Dufresne]

I think it's important for both the private sector and public sector that we have modernized legislation that treats privacy as a fundamental right, that does so while advancing the public interest, and that does so by generating trust. There will be some different considerations in terms of necessity and proportionality in terms of ensuring that whatever tool is used is warranted and is legitimate to goal.

In terms of the public sector, there will be a necessity that will often be at a higher level. If you're talking about the public interest, national security, prevention of crime and so on, they're distinct situations, and they have to be looked at in context.

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

Thank you.

Lastly, I want to go down this path. We know that over the past number of years, the RCMP has investigated, for example, members of Parliament. That is part of the motion that is before us. Obviously, the work you do as Privacy Commissioner impacts all government departments. It impacts the House, and it tries to protect the privacy of Canadians. Where do you see that balance between the role that the RCMP plays in balancing privacy and security of Canadians versus the role that you play in ensuring that privacy is protected and also that justice is done, and is seen to be done as well, in an efficient manner? What are your thoughts about that?

[Philippe Dufresne]

As the Privacy Commissioner, my mandate is to promote and protect the privacy rights of Canadians in the public and the private sector. That's the mission that I have and that my office and my colleagues have. But my vision would be that we have a culture of privacy in Canada throughout the whole of government, and that whatever organization, whatever department, including the RCMP, has privacy as a consideration.

The RCMP has its own mission and its own mandate in terms of protecting Canadians. They can talk about it more eloquently than I can, but I concluded my remarks by describing it as being vital and important to Canada. It's of fundamental importance. My goal is that, by doing so, they nonetheless have privacy as top of mind. I think that is doable. I think that strengthens privacy, which is a fundamental right, but it also strengthens the mission of organizations, in this case law enforcement, in protecting Canadians, because it generates trust and ensures that Canadians will know what they can do and what's being done. I think that ultimately helps the RCMP in its mandate.

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

Lastly—

[The Chair, Conservative, Pat Kelly]

Thank you.

No, I'm sorry, Ms. Khalid; you're out of time.

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

Thank you, Chair.

[The Chair, Conservative, Pat Kelly]

Over to you, Mr. Villemure for two and a half minutes.

[René Villemure, Bloc, Trois-Rivières, QC]

Thank you, Mr. Chair.

Commissioner, part VI, the part of the Criminal Code you just mentioned, comes up a lot in the documents provided by the RCMP. When I read the documents, I got the sense that part VI was something of a replacement for the Office of the Privacy Commissioner.

What are your thoughts on that?

[Philippe Dufresne]

Thank you for your question.

The fact is it doesn't replace the Privacy Commissioner. They are two different things. Part VI sets out the conditions in which police can use the tools. It stipulates the obligation to obtain authorization from a judge, the obligation to give notification and various other conditions. That is very important.

One thing is for sure. If the use of a tool was not subject to such obligations or a regime like this, there would be even fewer mechanisms to limit that use. A tool that is used across the board for everyone will certainly be handled differently than one that is used specifically for the purposes of an investigation. However, that does not relieve police of the necessity to assess the potential privacy repercussions when they plan to use new tools. That is why my office views those assessments as necessary, and we can contribute to the process by providing advice and an opinion on the issue.

Perhaps we will come to the conclusion that the assessment mechanism is adequate and come away reassured. The police could then tell the public that the tool had been scrutinized, and Canadians would be reassured. Perhaps we will conclude that the mechanism is quite good but has a few gaps given how quickly technology evolves. The regime would then need to be strengthened, and new criteria or safeguards added. All of that is possible, but it won't automatically flow from part VI, and that's where my office comes into the equation.

[René Villemure, Bloc, Trois-Rivières, QC]

Part VI does a good job of establishing limits, but your office provides additional oversight and a different perspective, one that is needed.

One of my fellow members brought up the Treasury Board's directives. They don't carry the same weight as the law—there is no disagreeing with that.

I gather from your previous comment that these obligations should be prescribed in the act instead of set out in an administrative directive that can change at any time.

Is that correct?

[Philippe Dufresne]

In my view, that's the thing to do. An administrative directive can always be changed. An act can also be changed, but it's obviously a more cumbersome process.

Conducting the assessments is what matters. Given the benefits to Canadians and the organization of conducting the assessments, making them a legal obligation, I think, will incentivize people to do them. When decision-makers have multiple obligations to meet at the same time, they will obviously prioritize those that—

[The Chair, Conservative, Pat Kelly]

I'm sorry, Commissioner; I'm going to have to go on to Mr. Green. It's tough, but sometimes I'm just not going to be able to let questions—