Information & Ethics Committee on Feb. 10th, 2022

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

Thank you, Mr. Chair, for keeping me on the straight line.

I'm sorry I didn't have an opportunity with you, Dr. Scassa, as well.

Thank you to both of the witnesses.

[The Chair, Conservative, Pat Kelly]

With that, I'm going to thank our witnesses.

Because of how badly over time we are, I'm going to suspend. Hopefully, we can very quickly sound-test our next panel's witnesses and begin the second panel as soon as possible.

The meeting is suspended.

[The Chair, Conservative, Pat Kelly]

I call the meeting back to order. Now we'll begin our second panel of today's meeting.

I'd like to welcome our witnesses, Dr. Martin French, associate professor in the department of sociology and anthropology at Concordia University, and Dr. Daniel Weinstock, full professor in the department of philosophy at the Université de Montréal.

Dr. French, you have five minutes for your opening statement. That's the absolute maximum for opening statements, in the interests of time.

Go ahead, Dr. French.

[Dr. Martin French, Associate Professor, Department of Sociology and Anthropology, Concordia University, As an Individual]

Thank you, Mr. Chair and members of the committee, for the invitation to speak with you today.

I've been studying public health surveillance from a sociological perspective since 2003, when I started my doctoral studies. Over the years, since completing my doctoral work, I've continued to write about surveillance in public health and medical care contexts.

As a sociologist, I tend to prioritize different questions from the ones public health professionals might when considering public health surveillance systems. I share public health professionals' evaluative concerns that touch on questions of efficacy, efficiency, utility, timeliness and so on, but as important or even more important to me are social questions about how surveillance or its effects might be experienced by people in their everyday lives.

I'm interested, for example, in whether people might be advantaged or disadvantaged by surveillance. In my research, I tend to ask critical questions about public health surveillance systems. Perhaps it goes without saying, but I should also stress that while I ask critical questions, I am not against surveillance. In fact, I participate nearly every week in the FluWatchers surveillance initiative, which is operated by the Public Health Agency of Canada. This is one of the surveillance systems that provides data for the COVIDTrends website mentioned by Minister Duclos in his remarks before this committee.

I believe that public health surveillance can be valuable and I wouldn't want to see the Public Health Agency's innovations thrown out with the bathwater, but I'd like to use my time here today to put one critical question about equity on the table for the committee's consideration.

Members of this committee have been asking vital questions about privacy and consent in relation to the Public Health Agency's mobility tracking work. In addition to my fellow witnesses here today and witnesses from whom I believe the committee is going to be hearing in the days to come—Dr. Christopher Parsons, Dr. David Murakami Wood, Dr. David Lyon and others—these issues are going to be well covered. I want to say that I share the concerns of these witnesses.

I want to add an emphasis to what they're saying and a focus on equity questions, particularly this question: Who may experience intensified risks or harms as a result of mobility tracking?

In her remarks before this committee on February 3, Dr. Tam mentioned that mobility tracking could be used to understand the efficacy of public health measures. She stated:

Mobility data at this kind of aggregated level can be used when provinces and territories or local jurisdictions enact public health measures to reduce contact rates or to ask people to stay at home, for example, to see whether those measures are actually working.

What would happen if these data were to show that people, for example, in a Montreal neighbourhood where I live, are not, in fact, staying home? Is it possible that these data would correlate to an intensification of policing or enforcement in that neighbourhood? I would like to know if the Public Health Agency of Canada is thinking about mobility tracking in relation to social scientific work on policing the pandemic, for example, led by Dr. Alexander McClelland, Alex Luscombe and the Canadian Civil Liberties Association.

Because of such equity questions, I would like to encourage the Public Health Agency and the Government of Canada to be more forthcoming in their discussion of emergent surveillance and contact tracing technologies. I think I'm nearly out of time, but I can give you an example of what I'm talking about with reference to the COVID Alert contact tracing application, if members want to pose questions about this.

Let me conclude by saying that I'm speaking today informed by the previous research that I've done and not from empirical data that I've been gathering about this particular mobility tracking initiative. I'll ask the committee members to please keep this limitation in mind while considering my preceding remarks.

I'll stop there. Thank you.

[The Chair, Conservative, Pat Kelly]

Thank you.

We'll now go to Dr. Weinstock. You have up to five minutes for your opening statement.

[Dr. Daniel Weinstock, Full Professor, Department of Philosophy, McGill University, As an Individual]

Thank you.

I'm going to take 10 seconds of my time to correct the presentation that was made of me. I've been at McGill University for 10 years. I'm in the faculty of law and in the department of philosophy at McGill University.

I'm not an expert on privacy. My work has focused on a number of areas, but two that are significant or relevant to our present discussions are, on the one hand, the justification and the limits on the justification of rights limitations in a liberal democracy. What processes and arguments can be put forward in order to justify limiting standard liberal democratic rights and freedoms? I have done that across a wide range of rights, including religious rights. How do we justify the limitation of religious freedoms?

The other aspect of my work that is relevant to our discussions today has to do with the conditions of trust in government. What are the conditions? How does government make itself trustworthy, which is probably the most important question, and what are the mechanisms through which it can, in a legitimate manner, elicit the trust of the population?

There are relevant things to say in both those domains, and I'll say them quite briefly.

I live in Quebec, and my perspective is probably coloured by that fact. In general, there has been a kind of process in Quebec of what I would call armchair proportionality testing that has occurred in a fairly regular way, where the government has imposed upon itself to present to the population justifications of the fairly substantial restrictions that it has imposed on people's freedoms and rights, mobility rights, and rights of association. It has often experienced push-back, when it's been felt that either it hasn't shown there was enough evidence to prove that the restriction was one that was necessary to achieve the goal, or that perhaps it was overly restrictive, given the achievements of the goal.

There is a kind of parallel between the sort of formal demonstration of proportionality one finds, for example, in the Oakes test, and the kind of garden-variety proportionality testing that makes it the case that the population looks at restrictions that have been put in place, and says, “Okay, we may not agree totally, but at least there is an attempt at being transparent and public about these restrictions.”

Here's where I think data tracking is a problem: we are not dealing with restrictions. We are not dealing with measures that restrict the ability of Canadians to move around or to associate. Surveillance is relatively invisible, in that the objective is not to restrict our activity, but rather to measure it. The pressure on the government to justify surveillance is not as high as for a restriction. Obviously, when someone is told that they can no longer take part in a particular activity, they will demand a justification.

I think that the government may be tempted to not provide a justification, but it should resist that temptation. If it isn't open and transparent about the surveillance objectives and limits, whether they are limits in time or limits on the type of data being collected, the information risks coming out in a newspaper article and triggering distrust in Canadians. However, this distrust may be without cause. If the government had simply provided the same type of justification that it provides when it imposes restrictions, it is highly likely that the issue of trust and distrust would not have arisen.

In my opinion, that's the difficulty in this current context. There needs to be reflection not only about the measures that federal and provincial governments must take to justify their restrictions, but also about the measures that they must take to ensure that they don't trigger distrust among Canadians.

I will make a comment to the government that was made by a committee member when talking about the general public. If the government has nothing to hide about how it wants to use the data, why isn't it open and transparent? Why doesn't it get ahead of the issue by telling the media and Canadians its intentions and the specific and circumscribed methods that it will use to collect the data?

I'll stop there because I'm probably out of time.

I look forward to your questions.

[The Chair, Conservative, Pat Kelly]

Thank you very much.

We'll go to our first round.

This will be six-minute questions beginning with Mr. Kurek.

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

Thank you, Mr. Chair.

First, thank you to our witnesses. I appreciate your coming to our committee today and sharing your expertise with us.

Dr. French, you talked about the FluWatchers app and the website, the platform and how that's informed some of the COVIDTrends data. A key difference there is that one is consent-based and one is informed by a whole range of other data.

Could you provide comment on the difference between consent for data being collected voluntarily or consent being directly given, versus some of the wide variety of collection that might have taken place on the COVIDTrends map?

[Dr. Martin French]

I can try.

On the FluWatchers, for example, I participate, as I mentioned, in that. I received an invitation to participate, I consented to participate, and I know that when I'm responding to emails the Public Health Agency of Canada is going to take that data, the information I'm giving them, and hopefully use it to inform their epidemiological work.

With mobility tracking, a number of members on this committee and witnesses have been raising consent issues, and I think that these are really challenging issues. In a lot of ways it's not clear to me, and maybe members of the committee could please correct me if I'm wrong about the specific details of this. Every member of the Telus network, for example, knew that if they didn't want to have their data included they should opt out.

I don't want to just impugn this particular initiative. I think this is a general cultural practice that we have of clicking “I agree”. I think Monsieur Villemure said this before in comments before this committee. It's just our culture today. We don't tend to read the terms of service and privacy policies, so we're not often aware. How could we be? They're often not written very clearly. They're not written to be read easily or understood.

This is, I think, a big problem. Many organizations say they're using personal health information, mobility data and other kinds of information. Even after they aggregate it, for example, de-identify it, there's still this kind of issue of consent maybe looming in the background more generally.

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

Thank you, Dr. French.

I don't mean to cut you off, but we do have a short period of time for questions.

I'm hoping to get this question to both doctors here.

You both reference the use of this data for its directed purpose by the government, but infer the possibility of there being unintended consequences, whether that be maybe different departments.... Even if it was aggregated or anonymized, the information may not simply stay within the Public Health Agency of Canada.

Dr. Weinstock, maybe I'll start with you. Would you in about 30 seconds, hopefully, talk about some of the concern that might be raised with that?

[Dr. Daniel Weinstock]

Yes, you've said it yourself. I think one thing that will increase trust in the process is if there are very clear, self-imposed limits by the government. This, of course, won't guarantee that there won't be leakage from one department to another, but it will give Canadians and watchdogs, like the privacy watchdog, a clear threshold, a clear benchmark on the basis of which they can say that what you've done here outrepasse—to use a French word—the limits you have imposed upon yourself in order to justify before Canadians the use of this data.

I think it's very important that there just be these very clear limits on the basis of which accountability can be very concretely based.

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

Thank you.

Dr. French, would you have a quick response to that?

[Dr. Martin French]

Just echoing that, I think that we know that early on in the pandemic first responders in Ontario, including police, were accessing COVID testing databases before the practice was stopped. We need to ensure that stronger firewalls are put in place around data that's collected for health and public health purposes.

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

Thank you very much.

I have a quick question for Dr. Weinstock.

There's the push-back on restrictions that I know this committee voted for unanimously, and then all the opposition parties voted to press pause on the RFP to continue this data collection. You talked about push-back on restrictions.

Do you have any comments on that and the need for the government to respect that push-back that's happened from both Parliament and committees?

[Dr. Daniel Weinstock]

If I understand the question correctly, I think we're in a very different time now than we were two years ago, which the government has to take into account. All I'm saying is, premised on the assumption that everything that's being done in this domain is perfectly justifiable. I think we are at a time where trust in government requires that that justification be done in a much more overt manner than might have been the case at the very beginning of the pandemic when the general population was, perhaps, willing to give a longer leash, as it were, to the government to act in the public interest.

[The Chair, Conservative, Pat Kelly]

Thank you, Dr. Weinstock.

We'll go now to Mr. Fergus.

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

Thank you very much, Mr. Chair.

Mr. Weinstock and Mr. French, thank you very much for joining us today.

Mr. Weinstock, I am very interested in the last point that you raised. I listen to you quite regularly on Radio‑Canada. You spoke about this just before Christmas, I believe. The trust of the general public depends on the context.

In the current case, the Canadian government did not conduct surveillance. It used de‑identified, anonymized and aggregated data. As you just said, the public was more tolerant at the beginning of the pandemic.

Some of their de‑identified data were used by provincial, municipal or federal governments to decide on the most effective measures in response to the pandemic. In your opinion, did that undermine the people's trust in government?

[Dr. Daniel Weinstock]

I will say two things very quickly.

I am not a data expert. When I was invited to appear before the committee, I did some due diligence. I asked some expert colleagues here, at the faculty of law, whether it's true that data can be completely anonymized. In both cases, they gave me skeptical smiles.

There's no such thing as completely “unpersonalizable”.

If there is a risk that what was initially used in a perfectly aggregated and anonymized fashion could then have personalized information reintroduced into it, then a precautionary approach must be used and measures must be taken to address the risk. The worst‑case scenario needs to be used rather than the best‑case scenario, if I can put it that way.

Once again, I am not at all hypothesizing that the current use of data by the government is wrong and reprehensible. I am simply wondering about the conditions that can inspire trust among the general public.

It's one thing to find out information from a National Post article that leads to Dr. Tam being called before the committee. It's quite another if the Prime Minister or Dr. Tam addresses Canadians ahead of time in an effort to be frank and open, expressing their view that significant public health objectives can be achieved by collecting these data, while ensuring that provisions limiting duration and use are put in place.

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

I'm sorry to interrupt you, but we have only six minutes. It's too bad, because it's a very interesting discussion.

[Dr. Daniel Weinstock]

You know, with two professors, it's difficult to—

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

—a philosophy student.

That's essentially what happened in April 2020. Dr. Tam said that aggregated, anonymized data would be used to measure certain things and that the information would be shared with all the health authorities across the country. The information was used, and there was a website on the topic.

That maybe didn't increase trust, but, at the very least, did it decrease the public's distrust of the use of these types of data?

[Dr. Daniel Weinstock]

In my opinion, it's important that an elected official be the one to do so. I may have misspoken when I said that it would have been the same thing whether the Prime Minister or the chief public health officer of Canada had done it. At the end of the day, decisions on issues as crucial and sensitive as data use should be entrusted to elected politicians. They are the ones who need to do this.

Across the country, there was a kind of confusion about what responsibility falls under public health and what falls under elected officials, particularly senior elected officials. I believe that it is the responsibility of political leaders, rather than of public health, to communicate with the general public.

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

How much time do I have left, Mr. Chair?

[The Chair, Conservative, Pat Kelly]

You have a minute left.

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

Dr. French, again on this point, we had witnesses in the previous panel who are experts in privacy who indicated that the Telus data for good program, although not perfect, like Dr. Weinstock, when he was speaking to his colleagues...it certainly met the best practices possible to ensure that this anonymized information cannot be reidentified or cannot identify people afterwards.

From your perspective, is that sufficient or must we go for perfection? Is it sufficient to have industry leading standards or must we go further?