Industry Committee on April 8th, 2024

[Brian Masse, NDP, Windsor West, ON]

I just wasn't sure about the—

[The Chair, Liberal, Joël Lightbound]

NDP-1 would still be receivable should CPC-1 carry.

[Brian Masse, NDP, Windsor West, ON]

Okay. I wasn't sure.

[The Chair, Liberal, Joël Lightbound]

However, I think Mr. Turnbull might have something to propose on this.

[Brian Masse, NDP, Windsor West, ON]

Sure. That's fair enough.

[The Chair, Liberal, Joël Lightbound]

I will recognize Mr. Turnbull.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you, Chair. It's great to talk about this.

To start with, I think there's some support for this in principle. There are aspects of the NDP-1 amendment put forward, which also expresses some language to go in the preamble that is now being inserted into the CPPA, that we support in principle.

There are still some challenges, perhaps, with the wording, but I want to express support for the fundamental right to privacy and the protection of minors. Of course, that's something we support, but I think there's some language.... What we've done is taken away both of those and considered a kind of compromise on language that we could propose, obviously subject to the committee's debate and vote, but I want to start with just a couple of clarifications.

Mr. Masse brought up a point that I was going to clarify too, which is that CPC-1 is a stand-alone amendment. I'm looking to the legislative clerk, perhaps, to clarify that. My understanding is that NDP-1 and CPC-1 are separate and can be voted on separately, and they do not impact one another. Is that correct?

[The Chair, Liberal, Joël Lightbound]

Yes, that's correct.

[Ryan Turnbull, Liberal, Whitby, ON]

Okay.

The other thing is similar to Mr. Perkins' line of questioning, but I might take a slightly different angle.

Mr. Schaan, perhaps you could clarify whether the coexistence of a preamble in the bill and a preamble in the CPPA could cause conflicts in interpretation, and whether there are any specific concerns you could raise for us that might come into effect if CPC-1 as proposed were to pass.

[Mark Schaan]

To build on an earlier point I was making, because this is being inserted into the CPPA to inform the interpretation of the CPPA, one area of concern is that it does then reference content related to the artificial intelligence and data act, particularly that it speaks to a particular aspect of technology above others that we think may potentially cause interpretative challenges.

The CPC-1 amendment states:

Whereas Parliament recognizes that artificial intelligence systems and other emerging technologies should uphold Canadian norms and values in line with the principles of international human rights law....

Our thought is that this clause may actually suggest the preamble is straying into territory to inform artificial intelligence regulation as opposed to privacy regulation.

[Ryan Turnbull, Liberal, Whitby, ON]

I know the Conservatives are trying to tell me something here, but as to the reference in what is being proposed to “artificial intelligence systems”, I believe embedding that into the language of the preamble of the CPPA makes it less technology-agnostic in language. Is that what you're saying, Mr. Schaan?

[Mark Schaan]

Yes. As a principles-based and technology-neutral statute, the CPPA aims to inform privacy practices for all corporate activities, and by including specific reference to “artificial intelligence systems” in the CPPA, we think that might cause an interpretative challenge.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you.

With regard to minors, I'll go back to something that was clarified earlier. I know the Conservatives were bringing up the definition of “sensitive information” or the idea of classifying all personal information of minors as sensitive, but perhaps we can clarify the approach we have taken with regard to minors in the drafting of the bill, because that's something I feel very committed to. I have a young daughter. I'm very concerned about her information being shared online and I want to make sure children are protected.

I think part of this inserts the concept of best interests of the child. I think there are ways we have dealt with that throughout the bill, and we have proposed amendments that I want to make sure don't get confused, given what I might propose in terms of language in a subamendment to this particular wording.

I want to clarify the protection of minors, Mr. Schaan. Can you outline our approach to that? Specifically, I'm looking for information on how we're making that a priority in this bill.

[Mark Schaan]

Absolutely.

Through the amendments being offered as well as in the text of the bill itself, as I noted, the most fundamental shift is in declaring that minors' information is sensitive and needs to be treated as such. That's an elevated bar for the purposes of a privacy management program, and it would engender a very significant level of scrutiny on the part of the Privacy Commissioner with respect to ensuring that safeguards are in place.

In a number of spaces, we speak, through the amendments, about the notion of ensuring that minors have the capacity to have their information thought of as sensitive and can have their parent or guardian potentially act on their behalf to do so. It's also about having the understanding in place that if a minor has the capacity to do so, they are able to act on their own behalf.

As potentially a necessity to be implemented by folks, “the best interests of the child” is obviously very good declaration language. In terms of precise obligations related to that, I think we have suggested that it's important to get at the construct of being able to act on behalf of a minor and to also have the capacity of the minor understood in cases where a minor would be able to act on their own.

[Ryan Turnbull, Liberal, Whitby, ON]

Just to clarify the government position, we don't disagree with wanting to protect the best interests of the child. That's exactly what we want to do. The intention there is pure and the right one to have. However, with respect to the mechanism through which to do that within the language of the bill, it seems to me there may be some challenges with embedding the best interests as wording in the preamble of the bill. Doing that may cause some challenges later on because, of course, we will have to debate the substance of the bill later.

Whether we decide to go with best interests or the capability test, which I think is what we intend to propose at some point, can you outline for me why there are challenges around embedding best interests in the language of the bill? I'm talking not just about the preamble, because I think there's an implication here. If we embed it in the preamble and then later on that term is not used in the bill itself, I think that creates interpretive problems.

[Mark Schaan]

Where possible, we seek to have consistency of language both in the obligation and in the ambition. The preamble, obviously, sets the ambition of the bill, and then the obligations of the bill will follow.

As per your previous point, I think the government, through their amendments, intends very much to get at the issue of minors' rights to privacy, but the best interests of the child as a legal obligation, when we get to the obligation section, is a subjective construct that potentially introduces quite a bit of ambiguity with respect to the commercial actor that needs to make a determination on that. It may actually engender quite a bit more collection of personal information in order to understand and interpret what is in the best interests of the child.

[Ryan Turnbull, Liberal, Whitby, ON]

Mr. Vis said in his opening remarks when introducing this to put children first and maintain their “dignity” and “autonomy”, which is language that I largely agree with. I think it is part of why perhaps we want to ensure that those who have the capability of making a determination about how they exercise their rights over their personal information, which will come up later.... That, I think, is the intention behind some of the language we intend to include or would like to see included in the bill.

Is that right, Mr. Schaan?

[Mark Schaan]

That is correct.

[Ryan Turnbull, Liberal, Whitby, ON]

Okay. The other thing is that who determines the best interests of the child is the challenge with the interpretation of the bill. When dealing with a commercial entity, is that commercial entity able to determine the best interests of the child, or is it dependent upon the parent to do so? Can you clarify how the language in the bill includes parental authority?

[Mark Schaan]

In the amendments and in the text of the bill, the construct the government has put in place is both to treat minors' information as sensitive and to authorize parents and guardians to be able to act on behalf of those interests, and then to include the prospect that where the capacity of the minor is understood to be sufficient, they would be able to make determinations in their own right. It's introducing a new construct, the best interests of the child. That would then need to be implemented by commercial actors, which includes what they would need to do with the information and how to treat it.

The amendment proposals that follow essentially get at the fact that it's either the parent or the minor, where there's capacity, as opposed to a construct that may be open to some interpretation.

[Ryan Turnbull, Liberal, Whitby, ON]

The challenge is how you implement and determine the best interests of the child. I think what you've stated is that a company would have to collect a lot of additional personal information in order to determine that.

[Mark Schaan]

In many instances, I think it would not necessarily be obvious from the personal information that's in the possession of the commercial actor to know whether or not its continued usage would or would not be in the best interests of the child.

[Ryan Turnbull, Liberal, Whitby, ON]

Would you be in a sense unintentionally defeating the intention of including that best interests language? By including it in the bill, you might be encouraging further breaches of privacy of personal information of children—inadvertently of course, as that's not the intention.

[Mark Schaan]

It may lead to overcollection for the purposes of trying to establish what that best interest is.

[Ryan Turnbull, Liberal, Whitby, ON]

Here's what I'm trying to tease out here and understand. Can we convey in the preamble the desire, the spirit, of the Conservative language without including the concept of best interest, only insofar as we want to clarify the intention of protecting minors? I think that's the intention behind the subamendment that I now intend to move, which you have.