Evidence of meeting #46 for Health in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.
A recording is available from Parliament.
12:55 p.m.
Liberal
12:55 p.m.
Liberal
The Chair Liberal Ron McKinnon
Go ahead.
The question is whether the decision of the chair in regard to Ms. Rempel Garner's motion requiring that we resume the meetings, which is not this meeting, should be sustained.
If you say yes, then you support the chair. If you say no, then I'm not sure what will happen.
(Ruling of the chair overturned: nays 6; yeas 5)
I am at a loss to figure out how we're going to actually accomplish this. We are out of time. There is no time to bring in the witnesses. Therefore, I will suspend this meeting and we will resume it in due course.
The meeting is suspended until we can arrange an appropriate time. Thank you.
[The meeting was suspended at 1:00 p.m., Monday, June 21]
[The meeting resumed at 3:41 p.m., Wednesday, June 23]
3:40 p.m.
Liberal
The Chair Liberal Ron McKinnon
I call this meeting to order.
Welcome to the House of Commons Standing Committee on Health. The committee is meeting to resume meeting number 46. Pursuant to the motion adopted on June 21 and the motion adopted on June 2, we are resuming our study on the emergency situation facing Canadians in light of the COVID-19 pandemic.
I would like to welcome our witnesses today. We have, from the House of Commons, Mr. Philippe Dufresne, Law Clerk and Parliamentary Counsel; and Michel Bédard, deputy law clerk.
From the Office of the Privacy Commissioner of Canada, we have Mr. Daniel Therrien, Privacy Commissioner of Canada; and Mr. Gregory Smolynec, deputy commissioner, policy and promotion.
From the Office of the Information Commissioner of Canada, we have Ms. Caroline Maynard, Information Commissioner of Canada.
I understand that Mr. Therrien has to leave somewhat early, so we will start our opening statements with him just in case.
I will invite the witnesses to make a five-minute statement. I will indicate when the time is roughly up with the yellow card and when it's actually up with the red card. When you see the red card, do, please, try to wrap up. You don't have to stop instantly, but do try to wrap up.
With that, I will invite Mr. Therrien, Privacy Commissioner of Canada, to make a five-minute statement.
Thank you.
3:40 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Mr. Chair, before we begin, as a matter of procedure, did we not invite someone from the Privy Council Office to appear today?
3:40 p.m.
Liberal
The Chair Liberal Ron McKinnon
We did, but they were unable to attend due to a lack of notice.
We'll carry on with Mr. Therrien.
Mr. Therrien, please, go ahead if you have a statement.
June 21st, 2021 / 3:40 p.m.
Daniel Therrien Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Thank you to the Chair and members of the committee for your invitation to share our views on your current study.
As you said, I am accompanied by Gregory Smolynec, the Deputy Commissioner. Due to a prior engagement, I cannot be here for the entire meeting, but Mr. Smolynec will remain afterwards to address any questions that you may wish to ask.
I am here to speak to you today about what the Privacy Act does and does not allow with respect to the production of documents under provisions of the Act related to disclosures of personal information.
Let me begin by stating that the role of the Office of the Privacy Commissioner is to oversee compliance with the duties and obligations in both the Privacy Act (the public sector law) and the Personal Information Protection and Electronic Documents Act (the private sector law).
The public sector law, the Privacy Act, enacted in 1983, applies to the personal information handling practices of federal government departments and agencies. The act defines personal information as information about an identifiable individual that has been recorded in any form. The act states that personal information collected by federal institutions can only be used for the purpose for which it was collected, for uses consistent with that purpose, or for purposes specifically provided for under subsection 8(2) of the Act. I believe this to be the provision most relevant to this discussion.
According to the Privacy Act, personal information cannot be disclosed without consent unless exceptions delineated in subsection 8(2) of the Privacy Act apply, two of which are most relevant for this discussion.
The first I would highlight is paragraph 8(2)(m). This provision allows for the disclosure of personal information where, “in the opinion of the head of the institution...the public interest...clearly outweighs any invasion of privacy that could result from the disclosure, or” if the “disclosure would clearly benefit the individual to whom the information relates”. Fundamental to this exercise of discretion is that there must be a clear public interest in the disclosure. The discretion to disclose or not to disclose personal information lies with the institutional head.
The second relevant provision is paragraph 8(2)(c) of the Privacy Act, which allows for the disclosure of personal information to “a court, person or body with jurisdiction” and the power “to compel the production of information” through the issuance of an order, subpoena or warrant. In relation to this provision, we recognize Parliament's authority to compel the production of documents that may contain personal information and acknowledge that the Privacy Act therefore allows for the disclosure of personal information to a committee.
In previous instances where this issue has arisen, we have recommended that committees explore a range of options to ensure that the authority of committees is exercised in ways that do not unduly invade on privacy. For example, mechanisms that might be considered include having committees come to an agreement that they will limit the personal information sought to only those cases that are clearly necessary to resolve the public interest at issue. Another possibility would be to hold meetings in camera where personal information is to be examined and discussed, or ensuring that there are proper procedures for securing that information once it is in the possession of both the committee as a whole as well as individual members. These are examples of privacy protective measures.
We hope—
3:45 p.m.
Liberal
Jennifer O'Connell Liberal Pickering—Uxbridge, ON
I'm sorry, Mr. Chair. I'm sorry to the witness, but I believe the bells are ringing.
3:45 p.m.
Liberal
The Chair Liberal Ron McKinnon
Very well.
Also, my apologies to the witness. We do require unanimous consent to continue.
Do we have unanimous consent?
3:45 p.m.
Conservative
3:45 p.m.
Liberal
The Chair Liberal Ron McKinnon
I propose that we continue at least until the end of Mr. Therrien's statement. Actually, his time is almost up, but let's give him another couple of minutes to finish and then revisit the matter at that time.
Is that acceptable? I think so. Very well.
Go ahead. I'm sorry for the interruption, Mr. Therrien.
Please go ahead.
3:45 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
No concern—I had essentially finished.
Our point is that even though a parliamentary committee can compel the production of personal information under its authority, and that there would be authority under the Privacy Act for the disclosure to a committee, in the circumstances we suggest that the committee take privacy protective measures to minimize privacy risks in that exercise.
That's the end of my statement. As indicated, Mr. Smolynec will be able to take questions if I have to leave shortly.
3:45 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you very much for your statement and thank you for being able to attend.
Do we have unanimous consent to carry on any further?
3:45 p.m.
Liberal
The Chair Liberal Ron McKinnon
No, we do not. Therefore, we will suspend, and we will resume after the votes are done.
Please do try to get back here as soon as possible after the votes.
Thanks to all of you. We are suspended.
4:55 p.m.
Liberal
The Chair Liberal Ron McKinnon
We are resuming meeting number 46, and we've heard from the Privacy Commissioner and we will carry on with witness statements.
I will invite Mr. Dufresne, Law Clerk and Parliamentary Counsel, to make his statement.
Please go ahead, sir, for five minutes.
4:55 p.m.
Philippe Dufresne Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chair, members of the committee, thank you for inviting me to appear today. As the House of Commons Law Clerk and Parliamentary Counsel, I am pleased to be here so that I can answer your questions.
With me is Michel Bédard, Deputy Law Clerk and Parliamentary Counsel, Legal Services.
I hope that our answers will assist the committee in your deliberations.
As you know, the House of Commons adopted a motion on October 26, 2020, that instructed this committee to undertake a study on the emergency situation facing Canadians in light of the second wave of the COVID-19 pandemic, and ordered the production of documents from various government departments and ministerial offices relating to this study.
The House's order required that before their tabling in the House and distribution to the committee, all documents be vetted by my office for matters of personal privacy information and national security, and for the category of documents relating to the COVID-19 vaccine task force and its subcommittees, that they be also vetted for information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations between the government and a third party.
On November 24, 2020, the Clerk of the Privy Council, Mr. Ian Shugart, testified before the Standing Committee on Finance that the documents responsive to the House's order could constitute millions of pages.
On November 27, 2020, I appeared before this committee and confirmed that I would devote close to 100% of my office's resources to the review of the documents in order to meet the seven-day timeline provided in the order, and that we could review up to 50,000 pages during that seven-day period. The same day, this committee adopted an order asking my office to prioritize the order in which we vet the documents and confirming that we could obtain an extension of time to review them if necessary by reporting to the committee.
The order also stated that all documents were to be circulated to the committee in both official languages. This became the second report of the committee to the House, which was adopted on December 4, 2020.
On December 7, 2020, my office received approximately 5,000 documents totalling almost 27,000 pages from various government departments and ministerial offices, which we vetted in accordance with the House's order and within the seven-day time period prescribed. In the letters accompanying the documents, the government indicated that my office could expect to receive subsequent batches of documents from the government.
The majority of the documents provided by the government were only in one official language.
As soon as we received the documents, I wrote to the Clerk of the Privy Council to ask him whether the government intended to provide the translated versions of the documents and, if so, when we could expect to receive them.
In his reply of December 18, 2020, Mr. Shugart stated that, in his opinion, following the second report of this committee, adopted by the House on December 4, 2020, my office was best placed to determine the sequencing and content of translation.
On December 22, 2020, I responded to Mr. Shugart’s letter and indicated that the government has an obligation to produce documents in both official languages in accordance with section 8 of the Official Languages Act and consistent with Standing Order 32(4), and that the second report of this committee neither diminished nor removed this obligation.
I added that, to avoid any additional delay, my office would be taking the extraordinary step of providing the documents we have received to date to the Translation Bureau on behalf of the government, but that I expected that, moving forward, the government would take the necessary steps to translate the documents in a timely manner. This is so that we receive the documents in both official languages for tabling in the House and for referral to the committee, once our approval process is complete.
The same day, I reported on this exchange to the committee. My office subsequently received additional documents from the government, so on February 3, I wrote again to Mr. Shugart asking when my office could expect to receive translated versions of the documents so that they could be tabled in the House and distributed to the committee.
On February 26, I received correspondence from the deputy clerk of the Privy Council indicating that the documents were being provided in the language in which they were available in the government's systems to produce them as quickly as possible, and that, given my office's role in determining the priority and sequence for vetting and distribution of documents, the government's position was that we were best placed to determine the order in which documents should be translated and to access additional funding from the Board of Internal Economy of the House of Commons. The deputy clerk also advised that the government expected to provide documents in response to the House's order on a monthly basis.
On March 2, I reported to this committee on the issue and reiterated my position that it is the government's obligation to provide bilingual copies of the documents. I also sought instructions from the committee about how it wished to proceed with respect to the translation of the documents for the fourth, fifth and any subsequent batches produced by the government.
We have to date been able to provide 6,307 documents to the Speaker for tabling in the House.
On February 12, this committee adopted a motion instructing the chair to inquire as to whether the contracts for Canada's seven vaccine agreements had been provided to my office in response to the House's order, and if so, requesting that the translation be prioritized so that the agreements could be tabled in the House and distributed to the committee as soon as possible. The motion also provided that, if the agreements had not yet been produced by the government, the committee request that they be provided by the government to be vetted in accordance with the parameters set out in the House's motion, and this committee review them in camera.
On February 25, the chair of this committee inquired about whether my office had received the vaccine agreements from the government, and I confirmed that we had not. The chair subsequently wrote to the Clerk of the Privy Council requesting that the government provide the agreements to the committee.
Finally, On June 4, the assistant deputy minister of the policy, planning and communications branch of Public Services and Procurement Canada, Mr. James Stott, informed this committee that the government was providing its vaccine agreements after having examined the contracts “under the strict requirements of the Access to Information Act and consulted implicated companies as is required to ensure the appropriate safeguard of their information”, and that the government had applied the applicable exemptions “to protect third-party or personal information, as well as to avoid jeopardizing orders or compromising Canada's negotiating position given the volatility of the marketplace.”
That concludes this review of the facts. I will gladly answer your questions.
Thank you.
5 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. Dufresne.
We go now to Ms. Caroline Maynard, Information Commissioner of Canada.
Ms. Maynard, you have five minutes.
5 p.m.
Caroline Maynard Information Commissioner of Canada, Office of the Information Commissioner of Canada
Thank you.
As you know, my name is Caroline Maynard and I am the Information Commissioner of Canada. Since this is my first appearance before your committee, I thought I would start with a very brief overview of my mandate.
I have no doubt that most of you, if not all of you, are familiar with the process of making access to information requests.
The overall administration of the Access to Information Act falls under the authority of the Treasury Board Secretariat. This means TBS oversees the handling of the access to information requests within government institutions.
My role is to investigate complaints relating to those requests, normally because the institution is late in responding or because requesters are not satisfied they have received all the information to which they are entitled.
I also have the power to initiate complaints myself, and at times, when an institution appears to have chronic issues relating to the access to information process, I can initiate a systemic investigation of that particular institution. In addition, I can participate in court proceedings when necessary. My office has done this on a number of occasions.
As an Agent of Parliament, I report annually on the activities of the Office of the Information Commissioner. Just last week, I tabled my annual report for 2020-21. I can also issue special reports to Parliament in respect of important issues that fall within my powers and functions.
My most recent special report focused on the systemic investigation I conducted into Immigration, Refugees and Citizenship Canada. But in the past twelve months, I have also tabled special reports on systemic investigations conducted into the Department of National Defence and the RCMP.
My goal is to maximize compliance with the Access to Information Act, using the full range of tools and powers at my disposal. I understand you are currently considering documents you received from PSPC that contain redactions based on the principles of the Access to Information Act. However, these documents have not been requested pursuant to the Access to Information Act, but rather, produced through motions adopted in the chamber and in committee.
Since my mandate does not encompass reviewing redactions to records produced in contexts outside the access to information regime, I have not been consulted, nor have I been involved in any way. As such, I cannot comment on the disclosure or redactions of these particular documents.
It is worth noting that if these records were requested under the act and I were to receive a complaint concerning their disclosure, I would undertake an investigation that would require that I afford parties a reasonable opportunity to make representations prior to reaching any findings. I would also be precluded from commenting publicly on any investigation in progress.
I will leave it at that, as I am mindful of the time. I will gladly answer your questions.
Thank you.
5:05 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Ms. Maynard.
We will start our questioning now with Ms. Rempel Garner for six minutes, please.
5:05 p.m.
Conservative
Michelle Rempel Conservative Calgary Nose Hill, AB
Thank you, Chair.
My line of questions will be directed to Mr. Dufresne in trying to ascertain what the committee should do with regard to next steps in trying to obtain the documents that we have not received yet.
Just for clarity, approximately how many documents did you receive under the House order from October of last year?
5:05 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
We have received approximately 6,307 documents.
5:05 p.m.
Conservative
Michelle Rempel Conservative Calgary Nose Hill, AB
Have those all been released to the committee so far?
5:05 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
They have. Excuse me, some that have been received have not been released to the committee because they have not been translated, so 6,307 have been tabled—
