Information & Ethics Committee on Aug. 9th, 2022

[Daniel Therrien]

Yes.

[Matthew Green, NDP, Hamilton Centre, ON]

Are you familiar with some of the work that has happened in Europe on the investigation that happened around Pegasus and NSO? In particular, in 2018, the Council of Europe adopted a protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Basically, the principles underpin the rights guaranteed by the European Convention on Human Rights and establish new principles, including the concept of privacy by design.

Do you believe that the principle of privacy by design should be a standard practice for any new technology that law enforcement agencies would like to use?

[Daniel Therrien]

Absolutely.

[Matthew Green, NDP, Hamilton Centre, ON]

Could you take a bit of time to define for people who might not know what privacy by design looks like and how it might be applied in this regard?

[Daniel Therrien]

I've referred frequently during the last few minutes to court oversight. Court oversight, ex post facto oversight, whether by the courts or the OPC, is necessary, but it is far preferable for privacy to be baked into processes that lead to the use of particularly intrusive technology. The benefit of privacy by design or privacy impact assessment is essentially to ensure that the population can be assured that it's not only after the fact that a violation will be found, but that violations will be reduced greatly in number because the right processes have been put in place.

[Matthew Green, NDP, Hamilton Centre, ON]

Would you agree that would also include the principles of transparency and accountability?

[Daniel Therrien]

Yes.

[Matthew Green, NDP, Hamilton Centre, ON]

We do know, in fact, that the RCMP in the past, particularly when it used stingray, the IMSI technology for mass surveillance, wasn't actually forthcoming about its use. In fact, it led to particular cases being thrown out of court. I just want to take this moment to underscore those principles—we talked about preamble versus legal frameworks—of transparency, accountability and privacy by design ought to be baked into all processes of law enforcement.

[Daniel Therrien]

Yes, and I would—

[The Chair, Conservative, Pat Kelly]

Thank you.

I don't think that was a question. In any event, there would be no time for an answer.

[Matthew Green, NDP, Hamilton Centre, ON]

If he's going to agree to it, then it goes on the record and becomes part of the committee's Hansard.

[The Chair, Conservative, Pat Kelly]

Okay, I'll allow him to agree.

[Daniel Therrien]

I agree, but again, I encourage you to give not very prescriptive definitions to these concepts but some general definition.

[The Chair, Conservative, Pat Kelly]

Thanks.

We will go now to Mr. Kurek, and then we will finish with this witness with five minutes from Ms. Khalid.

Go ahead, Mr. Kurek.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you very much, Mr. Chair.

Mr. Therrien, it's good to have you back before the ethics committee.

I'll try to get into a bit more detail in what has been an interesting discussion. In particular, we see the responses that the minister gave yesterday. He refused to disclose whether or not.... In a roundabout way, he did acknowledge that when other agencies do, in fact, use ODITs.... In a sense, he indirectly admitted that this type of technology is used by other agencies under the Minister of Public Safety's purview.

If you had a chance to listen to his testimony yesterday, are you concerned about the lack of forthcomingness that the minister displayed before this committee yesterday?

[Daniel Therrien]

I would again encourage you to clarify the law. If you want more transparency, make it a legal requirement and define the concept. Speaking about the RCMP for instance, the RCMP's premise, and perhaps that was behind the minister's answer yesterday, is to try to be transparent but to protect its methods of operation so that criminals do not know how they function, because of course investigations would be impeded. This question of protecting methods of operation is always in the minds of police and government officials answering questions like this.

I heard yesterday something that looked like a standard to me, which you might wish to consider. It would be that the government and the police would have an obligation of transparency, subject only to what is necessary to protect police methods and the integrity of investigations. In other words, the standard would be transparency.

The exception would be limited only to what is necessary. Perhaps if that was clearer—not perhaps. It is clear to me because I've had many occasions—and I'm not speaking about the minister; I'm talking about conversations over the years with law enforcement and national security, and it's not their starting point to say things that might impede their investigations. Sometimes they're overly cautious in assessing the balance between transparency and the protection of methods.

If the law was clearer that transparency is the rule and only when necessary to protect police methods is it acceptable to not be transparent, there might be progress.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

On the question I asked your successor yesterday, I think it would be valuable to have your response as well.

When you were commissioner, did the Office of the Privacy Commissioner take steps to ensure that, if questions about operational integrity or the status of an investigation were to be part of the conversation around whether or not the privacy of Canadians would be protected in terms of consultations with the Office of the Privacy Commissioner, those things would be protected?

[Daniel Therrien]

The OPC has employees who are security cleared. This was made clear to national security and law enforcement, who understand that. Yes, these steps were taken.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Thank you.

Then—

[The Chair, Conservative, Pat Kelly]

Mr. Kurek, I'm sorry, but your time is up.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Okay.

[The Chair, Conservative, Pat Kelly]

Now we have Ms. Khalid for the next five minutes.

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

Thank you very much, Chair, and through you, thank you, Monsieur Therrien, for your presence here today.

I'll continue along the same line of questioning that my colleague Mr. Kurek started with. This is with respect to the role of ministers in providing that oversight and how much of a say they have.

Yesterday we heard some testimony that the use of the technology we're talking about dates back to 2012. This means that either Vic Toews or Steven Blaney was the minister at the time. Do you think the RCMP consulted with either Minister Toews or Minister Blaney before deploying that technology?

[Daniel Therrien]

Before deploying ODITs?

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

Yes.