Industry Committee on April 10th, 2024

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Did the department or minister talk to the Privacy Commissioner about this proposed change to our amendment before tabling this subamendment?

[Mark Schaan]

We have had an ongoing dialogue with the Office of the Privacy Commissioner as it relates to this bill, including on the government's potential areas for amendment.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

In our discussion with the Office of the Privacy Commissioner yesterday on the specific wording of the bill, he had a view different from what you just articulated. He said it actually narrowed the Privacy Commissioner's ability to issue guidelines for the best interests of the child. Not using that terminology, those words, in the act restricts his ability to provide guidance to organizations on that concept.

I'm assuming the department is saying that you don't agree, that it doesn't restrict it.

[Mark Schaan]

Our view is that the appropriate considerations we're looking for are around the ways in which organizations can provide stronger protections for minors. I don't hold a specific view on whether this does or does not do that in the specific ways that have been articulated.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I was almost finished until you said that. I'm sorry.

Obviously this is not a political discussion. This is a very specific thing that some of us who are marketing guys are trying to.... We look at words differently from how lawyers do.

When the department and the department's many lawyers—I presume the Department of Justice is part of looking at these things—decided to remove the words “best interests of the child” and replace them with other words, they were trying to do so for a specific intent, and in the opinion of the Office of the Privacy Commissioner, that specific intent was to narrow his scope.

If you don't agree with that, then what was the specific intent of removing the words “best interests of the child” and replacing them with language that other lawyers think narrows the scope?

[Mark Schaan]

The specific intent of the subamendment was—in the absence of already issued guidance or guidance still to come—to provide interpretability to commercial actors that would need to live up to this ambition from the moment of promulgation. The intent was to provide them with a clear pathway towards living up to the act, noting, as we have, that this inclusion would require further guidance.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Then the words the government is proposing here aren't enough to provide the guidance; something else will have to happen.

[Mark Schaan]

The words we provided, “worthy of stronger protection”, are consistent with the obligations found within the CPPA, notably the sensitive definition of “information” as it relates to the information of minors.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

It doesn't reflect the language of the many documents that MP Vis and I outlined, which the Government of Canada has signed, thereby accepting that our legislative frameworks should reflect the terminology that has been negotiated internationally whether by the OECD, by the G7 or in the UN convention, which use the terminology “best interests of the child”.

[Mark Schaan]

I think the declarations outline the intention to get to an outcome of stronger protection for minors, and we believe that to be consistent with those declarations.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Then that terminology should be in the bill. If it's worthy of being signed by Canada, then why isn't it worthy of being put in the bill by Canada?

[Mark Schaan]

I don't have a response to that.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Okay.

[The Chair, Liberal, Joël Lightbound]

That's fair enough.

Thank you, Mr. Perkins.

I have Mr. Masse next on my list.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

First of all, Mr. Schaan, as a former vice-chair of the scrutiny of regulations committee, I, along with maybe three other people, got your joke. It's one of the most obscure committees in Parliament.

I appreciate the government bringing forth this amendment. It's clearly trying to address Conservative and NDP amendments that are very similar, but what I'm worried about is whether this is going to be used more like a political compromise, which unfortunately could, at the end of the day, fall short for the legislation.

Are you familiar with the U.K.'s legislation? I would like to know whether you're familiar with the U.K.'s legislation and what they've done with children in theirs.

[Mark Schaan]

If you're speaking about the design code for children, then yes.

[Brian Masse, NDP, Windsor West, ON]

Under the U.K. Data Protection Act, they have a really robust section. I won't read it out. They also talk about how children change over time and there are other anomalies with it.

Would you say this amendment, or even what we've offered before, is stronger or weaker than the U.K.'s protection of children in terms of what we have in front of us for this legislation? Do you have an opinion on that?

[Mark Schaan]

I think the amendment we have before us is a preamble to the bill. If you're asking me about the bill itself and its actual obligations on entities with respect to their treatment of personal information, we would suggest that the CPPA as proposed, with a number of amendments that might follow, would allow for commensurate degrees of protection for children, possibly to include things like the design code, which would be certified by the Privacy Commissioner.

[Brian Masse, NDP, Windsor West, ON]

How would it rank up to the U.K.? I mean, they have a children's code too. I guess we don't have to do exactly what the U.K. does, but I'm wondering whether we're setting ourselves up to do more or we're setting ourselves up to do less than the U.K. They fall under the same legal system and parliamentary system as Canada, so I think there's a decent comparable there. The United States doesn't fall into the same parameters in those two facets directly.

[Mark Schaan]

As I said, in pith and substance, with amendments, I think the CPPA will offer protection to children commensurate to that of the United Kingdom.

[Brian Masse, NDP, Windsor West, ON]

Okay.

What would be, in your opinion, the downside if we didn't go ahead with the subamendment and then the other amendments went through? What would be the downside to the industries that would then be affected by this? How significant of a risk is that, really? We already have a problem in our world with child labour laws. We also have AI issues in building AI. We even have a significant problem as civilizations of treating children, despite these declarations, with humanity. Even the United States went through this last year, with some of their supply chains having children involved in brand-name companies.

My concern is this. In this day and age, why would we risk potentially...? The information I'm getting, at least, is that this amendment would lessen this protection of children. Why would we risk that versus what benefit we get out of it?

[Mark Schaan]

I think there were two points or considerations we put before the committee. One is that we desire this for ease of interpretability and implementation at the outset of the passage of this piece of legislation. That was our commentary around part (b) of the subamendment. Then, as it relates to parts (c) and (d), it's to ensure that the preamble is specific to the legislation that it informs.

[Brian Masse, NDP, Windsor West, ON]

You want clarity for companies, but I can't imagine.... Where is the big risk in this? Is there a legal risk for companies? Is it a risk for investments in Canada because they won't understand it, and then with all their resources, all their lawyers, all the money they have and everything at their disposal, they won't be able to figure out where they're going to be hurt from it?

[Mark Schaan]

I know the member knows this, but in terms of the Canadian economy, this bill applies to every single private sector organization transmitting, collecting or disclosing personal information. Small and medium-sized enterprises make up 99% of the Canadian economy. They will have similar obligations for understanding, interpreting and living out this act.

Important for us, I think, is that there is an ease of interpretability and implementation for all those commercial entities. I think the risk is that if there's ambiguity or uncertainty, they either take actions that are ill-informed or potentially the wrong ones or potentially take no action and instead choose not to engage in commercial service because it's simply too risky or ambiguous.

[Brian Masse, NDP, Windsor West, ON]

That's a fair point raised with regard to small and medium-sized businesses. We have these challenges in other types of policies related to taxation. I take note of that.

To get to my last question, if we do not pass this point in the bill, what do you see as a better alternative? Is changing...or the amendments that are proposed that would come forth from that? That's without the changes.