Citizenship and Immigration Committee on May 28th, 2015

[Richard Kurland]

Yes, I do.

The conclusion is this. I'd just like to read in a proposed revision, “(d) the retention, use, disclosure and disposal by the Royal Canadian Mounted Police of biometric information, any related personal information that is collected under this Act at the same time, and provided to the RCMP for the enforcement of any law of Canada or a province”.

Thank you, Mr. Chair.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

Mr. Kurland, welcome back. It's always a pleasure to have you appear before us, sir, to share your extensive wisdom and knowledge on matters of citizenship and immigration with us.

Express entry is, of course, a form of automated decision making, as you know. I wonder if you could share with us your thoughts on this initiative thus far. Has it been successful?

[Richard Kurland]

The design is a successful design. Much was done in a relatively short period of time on the information technology side. There are growing pains. There are known stumbling blocks. For example, hundreds of passports disappeared electronically from CIC's express entry system. Those bugs are being worked out.

The latest news is that the provinces have aligned themselves with the express entry system, streamlining and electronically structuring their intake systems to mesh with the new federal express entry system. I did not think that so much could be accomplished in so little time. It is a work in progress, but my goodness, once again Canada is going to be a model to the world on this one.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

I have a question I want to ask you on automated processing, which of course is part of the provisions in the BIA that we're deliberating on today. These provisions will allow Canada's Minister of Citizenship and Immigration to administer and enforce the Immigration and Refugee Protection Act using electronic means, including enabling automated decisions to mandate the electronic submission of applications and other documents.

Can you share with us how you feel that will go? What's your prediction on the automated decision-making process? Do you think it will be as successful as the eTA?

[Richard Kurland]

A computer does what someone tells it to do. The key here is going to be the instructions that will go into the automated decision-making system. Too much detail will cause error. Creaming off the easy decisions using profiling and to put it plainly a set of common-sense instructions, should facilitate decision making.

Will there be a need for a type of ombudsperson or a type of secondary review by senior officers? Yes, there has to be that human element to deal with decisions that do not come under the primary automated scheme.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Clearly, we believe this will be a positive step for the tourism industry.

Have you had any feedback that you'd care to share with us today?

[Richard Kurland]

I did some consultations with external stakeholders in the U.K. and the United States. I wanted to see whether objections similar to those expressed by stakeholders at the time of the introduction of the American system would take hold in Canada. The answer is no. Fortunately, the Americans ploughed the road for us, so by mimicking what was done successfully in the past, we followed best practices in Canada.

The only irritant would be the nominal fee attached to the new system, but then, the travelling public is accustomed to the introduction and remission of such fees over time.

[Costas Menegakis, Conservative, Richmond Hill, ON]

The automated processing and decision-making components in the BIA provide a legislative framework for us to move forward. Do you think that's an important move?

[Richard Kurland]

Yes. What took so long is the reaction. It is a good move. It does facilitate and reduce the cost of the enforcement of program integrity. Also, it gets good people moving faster and it makes it more difficult for bad people. It's the right move.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Oh, good.

I want to go back to biometrics. Before you appeared before us today we had officials from CIC here. I brought up an example of a very tragic case in Toronto, the killing of Constable Todd Baylis by a foreign criminal who had tried to come into Canada several times, found his way in here, and unfortunately took the life of a very bright young officer who by all accounts had a bright law enforcement future in front of him and certainly would have otherwise had a long and prosperous life.

If we'd had biometrics in place back in 1994, it would potentially have identified this criminal before he came to Canada. I wonder if you can share with us your feelings on the importance of screening those who, by all accounts, would otherwise have illicit intentions.

[Richard Kurland]

I remember the author of the Universal Declaration of Human Rights, the late John Humphrey, explaining to me at the time that the reason that document and similar UN documents included freedom of thought was that the technology of the day couldn't attack it. Intent still remains, for the most part, outside the range of information technology collection. One's intent cannot be gauged.

However, repeaters can be identified and denied access to Canada. The other group, individuals who've had contact with law enforcement either in Canada or overseas, would be identified and denied access to Canada. That's a powerful tool. Could it have prevented the death in that particular case? Possibly. If the fellow were a repeater, yes. If the fellow were on the grid with a criminal background, yes.

But I must lay some element of blame with the Canada Border Services Agency, the people responsible for enforcing a person's removal from Canada. To date, to my satisfaction at least, it has not been explained why they took years to remove that fellow from Canada. He was on our grid.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Madam Blanchette-Lamothe.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

Thank you, Mr. Kurland, for joining us today.

First of all, thank you for your proposed amendment, but as you probably know, we cannot accept any amendments here in this committee about Bill C-59. We cannot make any substantive changes because the Conservatives refuse to split their omnibus legislation. All we can do is refer our comments to the finance committee. They will then study the amendment, if we suggest an amendment, even though they will never hear your testimony and the explanation behind that amendment. Of course, it is not the way to do things according to the opposition, but what can we do?

But, anyhow, thank you very much for being here and sharing those comments with us.

That said, I'd like to talk briefly about privacy protection.

You spoke about that. And you aren't the only one to voice concerns over privacy. The Privacy Commissioner had questions as well. And, according to him, those questions haven't been answered. It's important to discuss those issues clearly and publicly so people know what to expect. Logically, we should know exactly how people's personal information is going to be handled before approving a measure like this. What will happen to it? When and how will it be destroyed?

I'd like to quote Leslie Stalker, a lawyer and expert on the Immigration and Refugee Protection Act. Ms. Stalker had this to say:

The big issue is privacy...we don't know how widely the data collected by the government will be shared....

She also said this:

For example, it appears that under bilateral agreements, biometric data may be shared with other countries.

Many other experts have raised questions and concerns, including the Canadian Bar Association, Amnesty International and the Canadian Civil Liberties Association. I mention them just so you know you aren't alone. Other experts around the country share your concerns. I would think that a responsible government would pay attention to those concerns and provide answers before going ahead with such a measure. But the government actually expects us to give it carte blanche despite the potential for the misuse of data.

Even though you can't propose your amendment to the committee, given that the Conservatives have chosen to proceed in a way that makes doing so impossible, I would still like you to read it for us. Since you were a bit rushed earlier, I'd like to give you the opportunity to round out the end of your presentation, which you only had time to summarize.

[Richard Kurland]

I still have confidence in the committee. In the past, I've noticed that, somehow, proposed amendments—

would appear in the final version.

So, in my view,

the glass is half full.

Nevertheless, I would say this.

I carefully considered the concerns expressed by many regarding privacy and I did come up with a practical solution. What is absent, oddly, in this detailed electronic means proposed legislation is the statutory requirement to retain a backup. How is that not in our law here and how does this connect to privacy?

You see, in the proposed law, one is entitled to dispose of information. Information may change over time, but if a privacy commissioner seeks what really happened at a certain point in time, the existence under a statutory obligation to retain a backup of the system would give the privacy advocates at least a reason to hope that redress may occur, maybe not in the near future but over the time required through a process to open a backup and retain records. To protect the public, a backup does make sense. To protect privacy concerns, the possibility of a person, years later, going into the system to retrieve data may have a deterrent effect on public officials to encourage them to respect privacy concerns.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Thank you.

I believe my colleague had some questions for you as well, so I will turn the floor over to her.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you.

It is lovely to see you again, Mr. Kurland.

You talked about proposed paragraph 150.1(1)(d) and your concerns there. I asked CIC officials about function creep. It seems to me that there is some concern about function creep, and you mentioned that information in future might be used for a purpose beyond the original intent. CIC officials said that there was no concern. Their minister hadn't addressed that, but clearly DFATD has. I wonder if you could comment on that function creep and the concerns that at least DFATD seems to have around that.

[Richard Kurland]

The witness was careful with—

[The Chair, Conservative, David Tilson]

Excuse me, you're talking about clause 174.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Yes.

[Richard Kurland]

The witness was careful in the choice of words and guarded the comments with something to the effect of not being yet advised by the minister, so the parameters were laid down prior to testimony.

The collection of personal information is delicate. DFATD correctly has illuminated areas of concern operationally. Canada is in the business of guarding private information, and relative to other countries, western countries, we do a good job.

Is it going to be a perfect system? No. I took the opportunity to speak yesterday with retired senior public servants who worked in the public sector information agency during their careers to learn how to defeat biometric systems. The technology is there to defeat biometrics systems. No system is perfect.

DFATD may have legitimate concerns regarding the intake and storage. The concerns are expressed and the function of this process is to layer up and protect what has been identified by DFATD as a potential information leakage source.

So yes, I can echo the concerns. It's all about resources to build up the castle walls ever higher, if you don't mind the anachronism.

[The Chair, Conservative, David Tilson]

Thank you. We're way over. I'm sorry.

Mr. McCallum.

[John McCallum, Liberal, Markham—Unionville, ON]

Thank you, Mr. Chair.

Welcome to our witness, one of our favourite witnesses, I should say, on both sides of the table.

I'm in favour of this legislation subject to certain concerns on privacy issues, which I think you share, but I'm a little concerned when the government members seem to think this is some sort of panacea against those who would kill policemen. In the case that was mentioned, it's my understanding that the individual who was charged with the killing arrived in Canada at the age of eight. He had a criminal record here and the immigration department was unsuccessful at extraditing him. For things of that nature, purely domestic, he would not have been subject to any of this.

Also, a very high proportion of people coming to Canada are U.S. citizens, as visitors, or U.K. citizens. A large number wouldn't be subject to any of this. While I agree with it in principle, can you give us a realistic account of the degree to which it will assist in preventing crime in this country?

[Richard Kurland]

It's not about preventing crime as much as it is about preventing the entry of criminals to Canada.