Evidence of meeting #126 for Industry, Science and Technology in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
4:50 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Thanks again for the question. All would need to be appointed by the GIC.
I was just specifying that at least three members would need to have experience in the field of information and privacy law.
4:50 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
I will note for the record that Mr. Therrien did say that this tribunal would “create delays”—this is more of a comment—would be “duplicative” and that there's no international precedent for this.
Perhaps you can challenge Mr. Therrien's comments on the framework that the department is trying to establish in this legislation, and whether there is in fact an international comparison that we as MPs can draw upon for further review as we move forward with this.
4:50 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Thank you very much again for the question.
I'll begin and then perhaps ask Ms. Angus to add in as well.
I believe that over the last couple of meetings we've highlighted a number of other jurisdictions. In fact, I'd like to back up for a second and start by pointing out that it really depends on the specific question that we're asking. If we're asking a question about whether other jurisdictions separate the investigative and adjudicative functions, the answer to that is almost universally yes.
Whether we're looking at the U.K. or Ireland, as we gave examples of last time, or Australia or New Zealand or Singapore, almost all have a system or a mechanism in place to separate the investigative and adjudicative functions—in other words, avoiding a scenario in which you'd create a judge, jury and executioner all in one office.
In Ireland, as we mentioned previously, the privacy regulator is not able to levy penalties directly. You can seek those from a court or a public body. They actually have the highest level of fines levied under the GDPR, the general data protection regulation of the European Union. In New Zealand, costs and damages may be awarded, but they have to go to a human rights tribunal to seek those. Singapore also has a separation. I could go on and on. France also has a two-tier separation system.
It's very common, not just in Canada but also internationally, to have some degree of separation between a body that conducts an investigation and develops findings and a body that makes a final determination about a penalty, for example.
4:50 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
Would it be a fair description to note that the separations you've just outlined in many of those other jurisdictions are contained within one body but two separate entities, whereas we're creating essentially two separate institutions? Is that a fair description?
4:50 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
There are scenarios in which they are in the same body, but expert tribunal models are used in the U.K., Australia, New Zealand and Singapore, so a variety of approaches are undertaken. Again, as we mentioned in the last meeting, there can be constitutional grounds for that. Attempting to just sort of pick out one feature and to do a comparison can be a little bit tricky, because doing that doesn't necessarily take in the full scope of understanding of the constitutional grounds upon which that framework is based. Therefore, we tend to look at it as a whole and to understand how it functions in its totality.
To answer your question in as straightforward a way as I possibly can, it depends on the jurisdiction. Many have a separation between the two bodies. Some have bodies that are unified but have separations or firewalls built into the organizations that separate investigation and adjudication.
At the moment, the Privacy Commissioner does not have that separation built into their functions. Our analysis was that it would be very difficult to establish that inside the body of the Privacy Commissioner as it stands today, in part because of its responsibility for the Privacy Act as well. In other words, the Privacy Commissioner is responsible not just for PIPEDA or in the future for CPPA but also for administering the Privacy Act. There are more challenges associated with covering that and with having this separation built into the Office of the Privacy Commissioner itself.
4:50 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
Thank you.
Just going back to the appointments, I do find it somewhat concerning—even though they are GIC appointments, and we know how GIC appointments work in this country—that only three people would be needed to be experts on privacy. That means up to 50% of the tribunal won't have to be experts. It could be Joe Blow off the street, theoretically, or someone close to whoever is in power at a certain time.
Do you believe or does the department understand that the way the GIC appointment process could work for the tribunal could lead to individuals' being appointed who have no business being on a tribunal that could be responsible for levying significant fines on global corporations?
4:55 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
It's important to point out that the GIC appointments process is rigorous. There are safeguards in place in terms of the approach that's taken and the recognition that there are also complementary skill sets and experiences that could actually benefit a tribunal in coming to its conclusions. Individuals with deeper experience in other forms of law or in technology or with an engineering or a software engineering background could be helpful.
4:55 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
That would be in an ideal world, and that's the problem. We know how GICs work in Parliament. It's unfortunately not as rigorous as you describe it to be, but thank you.
Finally, if this legislation passes in the next fiscal year, there will be no major change to the Privacy Commissioner's budget. How do we intend for the Privacy Commissioner to take on all of these new roles in this legislation without having an increase in budget? They won't have the regulatory teeth you just mentioned without having the financial backing behind that. Why didn't the department recommend increasing the funding for the Privacy Commissioner in anticipation of this legislation?
I will note that Sustainable Development Technology Canada, which is under a stop-work order from the minister, had billions of dollars allotted to it even though it's not an operating body right now.
4:55 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Thank you very much for the question. It's a really important one in terms of the resourcing of the Privacy Commissioner. In fact, the department and the government did anticipate this need and took action early. In budget 2023, the resources available to the Privacy Commissioner were increased substantially. I don't have the numbers in front of me, but I believe there was more than $20 million over five years, and that was done very much in anticipation of this work coming.
4:55 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
What is the Privacy Commissioner's current budget?
4:55 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
I apologize, but I don't have that figure at hand. I can certainly bring that back for discussion.
4:55 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
Is it fair to assume that it is approximately $25 million to $29 million?
4:55 p.m.
A voice
It's $26 million.
4:55 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
Is it $26 million to $30 million over the next five years, or is it going up from $26 million to $30 million and then subsequently to $34 million in the following year?
4:55 p.m.
Director General, Strategy and Innovation Policy Sector, Department of Industry
I'd be very pleased to come back to the committee with a written response on exactly how the funding flows are designed to function.
4:55 p.m.
Conservative
Brad Vis Conservative Mission—Matsqui—Fraser Canyon, BC
I will note that the Privacy Commissioner, when he appeared before our committee, asked to have his budget doubled, so the Privacy Commissioner would disagree with the department's understanding that he has, in fact, been given the resources he asked for.
Thank you. That's all for now, Mr. Chair.
4:55 p.m.
Liberal
The Chair Liberal Joël Lightbound
Thank you very much, gentlemen.
Mr. Masse, you now have the floor.
4:55 p.m.
NDP
Brian Masse NDP Windsor West, ON
Thank you, Mr. Chair.
I hear what's being said about the tribunal, but I really don't believe that a black hole in the earth will open up and swallow us all through it if we don't create a tribunal.
4:55 p.m.
Some hon. members
Oh, oh!
4:55 p.m.
NDP
Brian Masse NDP Windsor West, ON
I've raised it with the minister from day one on this legislation. I understand there is a logic behind creating it. I mean, it's not something that's unworthy of looking at.
Do we even have a budget estimate for staffing on the tribunal?
4:55 p.m.
Senior Director, Strategy and Innovation Policy Sector, Department of Industry
Just to be clear, the tribunal will be supported by the administrative tribunals support services institution, which already supports about a dozen other tribunals. It's not a question of creating a tribunal machinery from scratch. It's very much going to be supported by an organization that already exists and that already provides services to a number of administrative tribunals.
4:55 p.m.
NDP
Brian Masse NDP Windsor West, ON
It joins, I guess, a group of other tribunals. I guess I'm not as familiar with this. I'm a New Democrat and we don't get appointed to GIC positions. That's just the reality of how this place works.
Where I'm at now, though, I think is important, because I've listened really carefully. I want to be open so that other members of the committee figure out where we're going on this. For me, I've always been open to considering the tribunal, and I haven't been presented a good enough case for it. I know there are some benefits to it. There is no doubt of that, but I still believe.... I think if there are resources lacking, then resources should go to the Privacy Commissioner, because I prefer building a model where the Privacy Commissioner has the first solid ground on this and then, following that, there's a process to go to the courts.
I've heard even from the past testimony we've had that, no matter what, we can always end up back at the courts—no matter what. For me, where I'm trying to work on things is..... People can sue, so I disagree with...but anyway, I'll let my friend explain that later.
For me at any point, what I'm looking for is a model, and it's why I'll support the amendment to abandon the tribunal as part of this legislation but to build one where the Privacy Commissioner has the first right of action, investigation and so forth. Then, if there's a case beyond that, a case that somebody wants to bring to the courts, they can do that. I don't believe that at this point in time, for this legislation, the tribunal is the right move.
I just want to make that clear for members, because I have an upcoming subamendment to adjust that part of the legislation we have.
Thank you, Mr. Chair.
Thank you to the witnesses.
5 p.m.
Liberal
The Chair Liberal Joël Lightbound
Thank you, Mr. Masse.
I have Mr. Turnbull next and then Mr. Van Bynen and Mr. Badawey.
Mr. Turnbull.
5 p.m.
Liberal
Ryan Turnbull Liberal Whitby, ON
Thank you, Chair.
Thanks to our devoted witnesses for being here yet again for another great debate. Thanks for all of your testimony, which I think helps elevate our debate and certainly provides us with a good perspective on the various topics that we're diving into.
I know that we're technically right now debating a subamendment that Mr. Perkins put forward to an amendment that was originally moved by Mr. Williams. I think Mr. Williams' amendment looked to remove all references to the tribunal from the legislation, and I believe that Mr. Perkins' subamendment was to try to almost doctor and put back in the private right to action. However, then I think there's some talk about striking a portion of that, which perhaps was unintended, if I'm not mistaken.
Chair, maybe you could just review where we're at, because I don't want us to get lost. It seems like a lot of our debate seems to be relating back to the original amendment and is not necessarily focused on the subamendment. I'd like to try to stay focused on dealing with one issue at a time, even though I get that the broader debate is on the tribunal as a whole.
Could you just clarify that for me, Chair?
5 p.m.
Liberal