Information & Ethics Committee on Aug. 9th, 2022

[Daniel Therrien]

I think they are generally sealed. You're going a little bit beyond my area of expertise here, but they're certainly generally sealed.

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

Okay. Thank you very much.

Ms. Polsky, there was some very interesting testimony today, so I'm going to ask you a series of questions. One is related to the letter that the commissioner of the RCMP had sent to this committee refusing to disclose some information that this committee had asked for. Is that something that concerns you?

[Sharon Polsky]

Very much. My view as a Canadian and as a taxpayer is that government and our law enforcement agencies are there to serve the public, not hide from it. It just doesn't come across as being deserving of trust. Trust has to be earned. To just flatly refuse a parliamentary committee and say no—that was surprising. It makes me think, are they hiding something?

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

All right. I appreciate that.

Yesterday the minister was not forthcoming when a number of us, including me, asked questions related to the use of national security exemptions. Is it concerning to you that the minister responsible for these agencies would not be forthcoming as to whether or not exemptions were used to circumvent some of the judicial processes laid out in the Criminal Code?

[Sharon Polsky]

Well, it certainly is concerning that there's a lack of clarity. It just seemed evasive.

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

As there are questions about operational integrity and ensuring that the integrity of investigations is upheld, and both the current and the previous commissioner for privacy have outlined how there are safeguards in place, do you find it concerning that it seems as though on this issue and also in previous areas that the RCMP has only responded to privacy concerns after either parliamentary or media outcry related to things like the use of ODITs, Clearview AI in terms of facial recognition, and that sort of thing?

[Sharon Polsky]

I think it's a problem that they are not collaborating with the Office of the Privacy Commissioner of Canada in advance but only after they get caught with their hands in the cookie jar. I think they're doing themselves and every law enforcement agency across the country a disservice when they are not forthcoming.

It also puts them on the defensive if they don't come forward and say, “We need to use this type of tool.” It doesn't give away any investigative information. Being general like that doesn't undermine investigations. It doesn't reveal anything sensitive. Help educate the public as to why you need this particular type of tool. Don't wait to be put on the hot seat and then give non-answers, like so many of them did yesterday.

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

When it comes to specific actions, Ms. Polsky, do you believe it should be outlined in privacy legislation that there should be proactive disclosures as opposed to parliamentary committees or reporters having to chase down the RCMP or other entities of government to try to bring about a public understanding of some of these privacy concerns?

[Sharon Polsky]

Yes. Having it in law is necessary. It has to be clear, not open to interpretation by an organization that wants to use the law to its advantage and not for the sake of clarity. But I caution saying, well, we have new legislation, Bill C-27, the artificial intelligence data act, and that will protect it. It doesn't, because any organization that is deputized, if you will, by CSE or CSIS can do what the government can't.

[The Chair, Conservative, Pat Kelly]

Thank you, Ms. Polsky.

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

Thank you.

[The Chair, Conservative, Pat Kelly]

We'll finish this panel with Ms. Khalid.

Go ahead for the final five minutes.

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

Thank you very much, Chair.

Thank you again to the witnesses.

Monsieur Therrien, if you don't mind, I'll continue with you.

Now, we've heard the scope of the spyware and its use and its intrusive nature on not just Canadians but people in general. The European Union has been involved in, for example, putting Pegasus...saying that it is violating rights. Do you think Canadians should be able to sell spyware like Pegasus to anyone at all? For example, I mentioned the Awz group in my previous questioning. Should organizations like those be able to sell this extremely intrusive technology? Should the government be regulating not only the use of that within our country but also the sale of that abroad?

[Daniel Therrien]

Yes, there should be laws regulating the sale, import and export of these technologies. Should they be banned completely? We see in this study that there may be rare cases when the public interest would make the use of such technology by the state permissible, but definitely there should be laws around sales, import and export.

By the way, while I can see compelling grounds for the government, the state and the police to use this type of technology exceptionally with judicial authorization, I cannot really see any compelling reason that someone in the private sector should be able to use this technology. Maybe I don't have sufficient imagination, but I cannot see any compelling reason the private sector should be able to use it.

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

Thanks very much for that.

I know that members have talked about accountability and the responsibility of a minister, for example, to oversee the work of the RCMP. You have said that operational decisions are not made by ministers and that, in fact, they don't get involved.

Can you perhaps expand on the importance of that division or separation of powers and responsibilities?

[Daniel Therrien]

There's certainly jurisprudence by the Supreme Court on the notion of police independence, which defines the limits of political direction over the work of police forces. At the same time, I've suggested that there could be certain legal prescriptions on the police, for instance, through the Privacy Act. The Criminal Code, part VI, which has been referred to frequently, has transparency requirements that are imposed by law on the government and therefore include the police. You may want to have a look at these transparency requirements to see whether they should be improved. They're good, but they are probably perfectible.

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

Thank you very much for that.

My last question for you is around the part of the motion that seems to be insinuating that the RCMP is wiretapping or surveilling members of Parliament.

Given your very great experience with the privacy commission and beyond, hypothetically, if members of Parliament were colluding with others in the planning or furtherance of illegal activities in Canada—for example, if they were working with the convoy that occupied Ottawa for a couple weeks—would there be any sort of parliamentary privilege that would interfere with the RCMP's ability to conduct surveillance, including through ODITs, if a proper court order has been obtained?

[Daniel Therrien]

No one is above the law, so all Canadians are subject to the law, including criminal law, and can be the subject of investigations.

I think the RCMP stated yesterday that, although that might be a possibility, there are internal mechanisms to ensure that the surveillance of a member of Parliament requires a higher authorization within the RCMP. I have no knowledge that MPs are surveilled in that way, but certainly at the level of principle, no one is beyond the law.

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

Thank you very much for that, Mr. Therrien.

[The Chair, Conservative, Pat Kelly]

Thank you. That concludes your time.

First of all, I would like to thank both of our witnesses and excuse them at this time.

We have some time now to address some different pieces of committee business we have, but before we do that, the analysts have asked to have a couple of minutes to brief me, so I am going to suspend. We're going to stay on this call so we remain in public. The meeting is still in force, but we'll be suspended.

[The Chair, Conservative, Pat Kelly]

The meeting is back in session, so I invite everyone to get back to their seats.

I just have some notes here about this study that may even affect how we proceed with the rest of our day today.

The analysts have informed me of what the production constraints are around completing a report in order to comply with the timelines set out in the motion that we adopted in July, so we will conclude the study today. This will be the last day of testimony for this study.

The quickest that we are likely to get a draft report for the committee's consideration is September 12. We have committed in our motion to table the report the following week.

The week of September 12 is a very difficult week for at least four members of this committee in terms of time availability. Otherwise, it would be an excellent week for us, I'm sure. The point is that I think we are heading toward a very limited possibility of tabling this report within the constraints of the motion. It would be my intention, as the chair, to call the appropriate meetings at my discretion to do our best to table this report in Parliament as soon as possible, given the constraints that both the analysts and the production team will have, translation services as well, and perhaps the limitations of some of our committee members that week.

We may have to have a meeting in that week of the 12th, before Parliament resumes. We'll see.

As far as drafting instructions go, I'm going to ask that members communicate with the analysts through the clerk any particular instructions they might have. That way maybe we can dispense with a meeting dedicated to the production of documents.

I'm not sure how much debate we can have about this. I know that members may want the floor to deal with motions as well.

I see Mr. Green and Ms. Khalid.

Go ahead, Matthew.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

I think we're getting some really good information here. In fact, in the testimony yesterday, the deputy commissioner of the RCMP volunteered to provide us with the privacy impact assessment, and there was even conversation from the testimony yesterday that they would be willing to be more forthcoming with us in camera.

You'll note in my response to that yesterday that it might be of value to this study to allow for the impact assessment to come back with the potential for an opportunity to revisit the conversation in camera to get the full disclosure and candour of the decisions that were made and how they arrived at those decisions.

I think, absent of that, Mr. Chair, we're going to be missing a significant component of this study, and we'd only then have to come back with some kind of amendment or to reopen it. I think it would be easier, procedurally, if we found a way to adjourn, pause, recess the meeting, whatever the correct procedural language is, until such time that we receive that information and are able to conclude our final thoughts on the drafting of the final report.

[The Chair, Conservative, Pat Kelly]

Thank you.

Ms. Khalid, go ahead.

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

Thanks, Mr. Chair. I appreciate it.

I agree with you on the timing piece. I realize the challenges that our analysts will have. I realize also just how much effort they put into making sure that we're well supported in the work that we do.

I'm wondering if it would be feasible that we carry on with this additional meeting and extension of document submissions perhaps by the first week that we get back, the week of September 19. I think it would be very practical, and it would work with all of our schedules, as well as give the analysts enough time to put it all together.

I'd love your thoughts on this, Mr. Chair.

[The Chair, Conservative, Pat Kelly]

The problem with that is—and we're free to change our mind and revisit the decisions we've made—a decision was made by this committee to table the report in Parliament that week. This is why I'm raising this now, because I see the difficulty in meeting what we have committed ourselves to doing, and we certainly wouldn't be able to table the report quickly if we wait until that week even to instruct the analysts to produce the draft or work on the draft.

I have Mr. Bezan and then Monsieur Villemure.