Information & Ethics Committee on May 12th, 2023

[Philippe Dufresne]

We made recommendations to the Standing Committee on Access to Information, Privacy and Ethics and those recommendations were made public this week. In our opinion, the bill is a step in the right direction, but it needs to be improved.

We made 15 key recommendations that we feel are very important. The first is to recognize privacy as a fundamental right. That is the message that the commissioner's office and I have been conveying since I was appointed. In my opinion, that is the starting point because it will anchor everything. We are also recommending that the government strengthen the legislation's preamble and the clause that deals with the objectives.

Essentially we want to reinforce, confirm and maintain what has already been established by the Supreme Court, which is that privacy is a fundamental, quasi-constitutional right. That does not mean, however, that innovation or the public interest should be hampered. In fact, as commissioner, one of my priorities is to support privacy in such a way that it does not create barriers to innovation or the public interest. However, we are talking about a fundamental right that affects our dignity and freedom. If there is an unavoidable conflict, then privacy needs to take precedence. However, we need to try to avoid such conflicts.

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

Okay. Thank you very much.

Ms. Maynard, you recently sent us a letter about the need or your desire for the commissioner's office to be financially independent, like many other commissioner's offices. If I understand correctly, you were appointed by Parliament and so you are independent from government in that sense, but you still rely on the government for resources. Is that right?

[Caroline Maynard]

Yes.

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

Okay. What would you like to see happen in that regard?

[Caroline Maynard]

I would like the commissioner's office to have access to an independent funding mechanism, where a process is put in place, as is the case for other agents of Parliament who are completely independent. That way, we could appear before the committee or before a committee that is specially created for that purpose to present our financial needs and report on our spending. We would be accountable directly to Parliament rather than to the government of the day.

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

Given that your office is currently required to report to the government of the day, do you not think that the office's independence is really just a facade?

[Caroline Maynard]

I can assure you that I conduct independent investigations. The only thing affected by the lack of funding is the number of investigations we can conduct and the resources we have when we have to go to court. Right now, we have to make choices. If we need to conduct more investigations, but the government is imposing limits on our funding, then that raises questions about our independence. In our opinion, it would be better if Parliament, which appointed me and to whom I would report, was also the one to decide on our funding mechanism.

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

In other words, right now, you have certain choices that you have to make and you might be making different choices if you had a different funding mechanism.

[Caroline Maynard]

Yes.

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

Okay. I assume the government is not preventing you from making choices, just that, overall, those choices could be different

[Caroline Maynard]

As the Auditor General has said before in committee, Parliament sometimes grants us new powers, but there are costs associated with that. That is also true for Mr. Dufresne. For example, since the coming into force of former Bill C-58, I now have the authority to make orders and publish reports. However, that costs a lot of money and we also want to be able to meet the demand.

Right now, I have a backlog of 3,400 complaints, and I don't have the resources needed to investigate them. I would be delighted to be given additional temporary funding to conduct those investigations. On the other hand, I would also be prepared to give money back if the number of complaints that I have to deal with were to decrease. I think that sort of trade-off and accountability are important. If such were the case, we would not be required to extend the time frame for investigating complaints because of a lack of resources.

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

For some, that backlog of 3,400 complaints may make it seem as though they are being denied access to information.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Villemure.

Mr. Dufresne, I have to clarify something. When Mr. Villemure was asking questions about Bill C-27, you said that you sent the letter to the ethics committee. Is it possible you sent it to the industry committee?

[Philippe Dufresne]

I sent it to the industry committee. I apologize if I misspoke.

[The Chair, Conservative, John Brassard]

Yes, I checked with the clerk, and we didn't receive it. There may be portions of Bill C-27 this committee will have to deal with, so could I suggest that you share that letter with this committee as well? Is that possible?

[Philippe Dufresne]

I'm in the hands of the committee.

I think the submission has been made public. We've made it public on our website, so it's publicly available anyway.

[The Chair, Conservative, John Brassard]

Perfect. Perhaps somebody in your office could send us that letter, if you don't mind, sir.

[Philippe Dufresne]

Okay.

[The Chair, Conservative, John Brassard]

I just wanted to clarify that, Mr. Dufresne.

Next, Mr. Green, you have six minutes. Go ahead, please.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you very much, Mr. Chair.

To all of our friends, welcome back to this committee.

My good friend from the Bloc has raised some very important questions.

Having had the privilege of sitting on the public accounts committee, I would be doing myself a disservice if I didn't reference the good work of my predecessor, David Christopherson, who in the 42nd Parliament was at the public accounts committee. The committee made recommendation in a report called “Do Service Well”. Mr. Ferguson was the AG at the time.

Recommendation 1 was:

The Committee strongly believes that as the officer of Parliament tasked with ensuring accountability and value for taxpayer money in the federal administration, the OAG should not have to be concerned about the vagaries of parliamentary cycles as regards to their funding to effectively meet their mandate. In fact, as stated by Sylvain Ricard, Interim Auditor General, it is not appropriate for the OAG to lobby Finance Canada and also possibly be in a position to have to audit them. Therefore, the Committee strongly recommends that Parliament and the Government of Canada implement a statutory, fixed mechanism that ensures stable, long-term, and predictable funding for the OAG.

That particular committee at that particular time made that recommendation for public accounts.

All of you are here today for the estimates. I also recognize, Ms. Maynard, that in the past you have had to receive stopgap funding. You just referenced the need for interim supports in order to meet your mandate, but of course you are advocating a more fixed-term process.

To put to both of you, would you agree that it be a recommendation of this committee at the appropriate time to provide this type of external, stable, long-term and predictable funding in order to maintain the independence, integrity, efficiencies and strength of your respective independent organizations?

I'll start with you, Ms. Maynard. Do you believe that?

[Caroline Maynard]

Yes. In my opening remarks....

Given that you are preparing a report with respect to the review of the Access to Information Act and the Privacy Act system, I think it is appropriate for the committee to add recommendations with respect to having a mechanism that's independent for my office and for agents of Parliament. I'm talking for me and Mr. Dufresne, and I will let him talk, but definitely those recommendations would go a long way.

[Matthew Green, NDP, Hamilton Centre, ON]

Thank you.

Mr. Dufresne, we'll allow you to address that question.

[Philippe Dufresne]

Thank you, Mr. Green.

I agree. I think that a mechanism that would provide more distance from the executive.... I think the challenge is not necessarily the actual decisions that are made but the fact that we are regulating activities of the executive and being mindful of that potential perception. Is the executive making certain decisions or are the agents making certain decisions based on that funding reality? I agree with Commissioner Maynard that having parliamentary oversight over this area addresses that issue.

I think it's important that there be accountability, of course. The desire is not to have agents of Parliament have unilateral control. There needs to be that accountability, but that accountability ought to be parliamentary.

There are many mechanisms. The one you described would be one. There would be others, but this would be the key focus—transparency and distance from the executive.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Dufresne, is there one you would prefer over the other?

[Philippe Dufresne]

The one that you describe highlights ensuring appropriate resources. As I say, I'm not too concerned about parliamentary involvement in this, given our role as agents of Parliament, but I think a mechanism that would guarantee sufficient funding to at least fulfill the mandate that Parliament gives us would be essential. It may also help parliamentarians themselves by depoliticizing these types of issues and ensuring that this is something that really would follow—that if there is a parliamentary mandate, there's parliamentary resourcing to meet that mission.