Industry Committee on Oct. 17th, 2023

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Just to clarify, are we voting on Mr. Turnbull's motion?

[The Chair, Liberal, Joël Lightbound]

We're voting on the motion to adjourn debate by Mr. Turnbull.

(Motion negatived: nays 6; yeas 5)

I'll now return to Mr. Perkins, and then we have Mr. Masse.

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

Thank you, Mr. Chair.

We have spent two meetings on this—I understand that—but it's a fairly fundamental parliamentary issue.

I'll go back to what the minister said when he appeared in September to start the discussion. He said, “I'm here to propose a number of amendments, which you will see will allow us to move forward very quickly on that, because we have listened to you.” He then went on to say this, as I mentioned previously, but I'm going to go through all of these: “First, we will propose an amendment to recognize a fundamental right to privacy for Canadians.”

I'll read to you what the minister's annex says—and we've heard the response from officials that they're unsure about what the wording will be. It will probably replace some of the wording at the beginning of the clause or in the middle of the clause that refers to the privacy of individuals, but maybe the balance with organizations' rights is still there.

This is why the words.... Government members might say this is not legalese, so it's better. Actually, it does not help. It makes things worse in studying a bill, because we're about to have 15-plus meetings on this bill with witnesses who have studied the legal text of this bill, so their testimony can only be based on what's available to them in the legal text, not on the generalities of this letter, which says, in this case, “We're going to amend clause 5 in some manner or way. Trust us.”

If I go on to number two, which I mentioned, again, it mentions the preamble. For those who don't understand, the bill has a preamble, but once a bill passes into law, the preamble is not part of the statutes of Canada. It has no legal impact, so what goes into the preamble is irrelevant.

Most of what the minister said about number two.... I'll quote from the Hansard what he said at the committee meeting about number two. He said, “That is why our government will put forward amendments”. He didn't say, “We're open to amendments” or “We'll propose amendments”, or that somehow they're not drafted. He said, “That is why our government will put forward amendments to recognize and strengthen the protection of children's right to privacy.”

In his letter, he says it will be in the preamble, which is of no meaning. It basically says, “We'll make some amendments to section 12”, which refers to consent, but it gives no details about what will be done to section 12. It then says, nevertheless, that there's a bunch of stuff in section 12 that protects minors, who are not yet defined in this bill anyway.

The third is privacy. I thought we were being fairly collegial a week and a half ago, after our last meeting, when I said that all the minister has to do right now is make his three privacy proposals, which he said exist. He can do those three now, and the five proposed amendments on artificial intelligence he can work on through the system and get them done for when we start studying that six to eight weeks from now, but he didn't choose to do that. He had a week and a half to get three amendments done. I can get these amendments done by the law clerk of the Library of Parliament in about two days. It's not that difficult.

I know he has a cabinet process to go through, but I find it hard to believe that a minister of the Crown would sit here with a prepared text—prepared through the department—and read it into the record, making statements about eight amendments he will make without going through the cabinet approval process.

I believe there are contradictions between what he said in his testimony and this. As you see, he actually said, “we will propose amendments” in his testimony on number two—on minors—and then in the letter, he doesn't propose amendments. He says, “clause 12 is good enough.”

On number three, in his testimony before the committee the minister said, “That's why we will propose amendments”—not “we're open to amendments”—“to give the commissioner more flexibility to reach compliance agreements”. This is the third of the amendments to the Privacy Act. He's only making, out of 90 pages, three proposed amendments, but nonetheless, he's proposing amendments to give more flexibility on number three.

In the letter, he says that the government will propose an amendment “that the terms of a compliance agreement may also contain financial consideration.” He doesn't say anything about more flexibility to reach compliance agreements in the letter that he wrote to the committee. The letter to the committee says there will be an ability to do financial penalty, but in committee, he said something else. Where would that go? There are sections dealing with compliance agreements, sections 80 and 90, and the minister has made no reference to what he's going to amend in those sections on compliance agreements.

On number four, in committee the minister said...and this is where he turned his attention to artificial intelligence. I get that in a lot of ways the artificial intelligence ones are much more complicated and this world is moving very fast. However, he did say about the first of the artificial intelligence amendments by the government—in other words, the fourth proposed amendment to the bill—“We will propose an amendment to define classes of systems that would typically be considered high-impact”. Yes, there were lots of people who did that.

In the letter, he goes into a quite lengthy, almost two pages, list of general descriptions about what high-impact systems are, which would be included somehow in a schedule—not in the act, but in a schedule. I understand that the schedule becomes more flexible in the way it's proposed, so it can be changed from a regulatory perspective—if it's given Governor in Council authority—as this world is changing more quickly.

However, he doesn't say he's making an amendment to the act, so how does that schedule work? What are the legal words, not the general words here, for the seven areas that are put here? Within the next six weeks—and he's already had three weeks since his appearance—if this is such an urgent priority, surely the minister and the department know what it is they want to do and can get the Department of Justice to draft the regulations and take that through the cabinet approval process.

By the way, the government sat on the bill for a year after tabling it before they brought it for second reading in the House. Now they want the committee to give it superficial study, and they are dismissive in saying they're going to make these amendments but they're not going to show them to us. They're not showing them to us, and they're not going to show them to the 60, 70, 80 witnesses who are calling and saying, “What am I supposed to comment on in this bill? I'm going to comment on something that's out of date, that's irrelevant, and I'm going to be here talking about something that will not exist in the future, because the minister said he has amendments to these areas but he won't share them.”

With regard to number five, the minister said on AI, “we will introduce specific and distinct obligations for general-purpose AI systems like ChatGPT.” In the letter—you actually have to skip because they don't line up—if you go further down to page 6 in the appendix, it outlines “distinct obligations for general purpose AI systems”, or generative AI, as some call it. Again, it says the government is going to “propose amendments to create distinct requirements for AI systems...that are designed to be used for many different tasks in many different contexts.” It gives examples of those, but the examples are all ones that they say they're going to deal with in regulations, if I'm reading this right.

So the letter doesn't actually talk about the amendments he intends to propose; it talks about the regulations he intends to propose after the bill receives royal assent. Again, there's a contradiction between what he said in committee before us, when he said they are making “distinct obligations”, which was part of making these amendments, and then the letter says, “We're going to do that in regulations, so don't bother; we're not going to share that with you.”

On number six, he said, “I've heard that a clearer differentiation of the AI value chain—that is, a person who develops AI systems versus one who manages and deploys AI systems in their business—is necessary to ensure [compliance].” For those of you who don't know what that means, the bill currently would allow the minister and the government to put somebody in jail for up to five years if they were an academic and they developed an AI system, which somewhere down the line, five years from now, some company commercialized. That has absolutely nothing to do with the input of the individual scientist who developed it, yet the bill has this massive flaw in it.

So he says, great, I'm going to propose amendments to do that. The letter actually doesn't list any section of the bill that he's going to amend or any legal wording that he's going to amend on something that can put people in jail for five years. There's no legal wording, no section, just a lot of generalities about what's going on.

You have six weeks to get this part done. I would encourage you to do so. I'm more than willing to say that if you agree and the government agrees to those five on AI, we'll be here before we start the study on AI, and they'll be public so that people can.... All we need to do is have those three on privacy now, as we said a week and a half ago, so that when the Privacy Commissioner, the Information Commissioner, the lawyers and all the folks who are experts come here, they will actually know the words, the legal words that matter. That's what the courts will interpret this on. This is about how the Privacy Commissioner, the privacy tribunal and the courts will interpret this act and whether a company or an individual has had their privacy breached. Without the legal words, there are only vague generalities.

On number seven, the minister said in committee, “we will strengthen and clarify the role of the proposed AI and data commissioner”. In the letter, the last thing on page 7 of the appendix says, “The Government would support amendments to clarify more specifically the functions and roles of the AI and Data Commissioner.” In the committee, he said he was going to make an amendment to clarify. In the letter, he said, “Hey guys, I don't know what I'm going to do. If you want to propose some amendments, go ahead.”

Either the minister misled the committee in his opening statement, or he's misleading it in here. That's why, at this time, I'm going to put a point of privilege forward on contempt of this committee in an effort to try to solve this problem of the minister telling two stories—one before committee and then another when he wrote the letter.

On number eight, he said, “[the final amendment] we'll be proposing in terms of amendments that I wish to highlight is to align with the EU AI Act”. The government member was saying that he just meant he'd listen and propose. That's not what he said. He said, “We are putting in an amendment to align with the EU AI Act.” That was from a written text, which he did not table with the committee.

I don't believe the minister freelanced and did that all on his own. We know that departments have considerable input into what a minister says before a bill and before a committee—unless his officials want to confirm that the minister wrote this opening speech all on his own without departmental input.

Number eight.... The minister said he was proposing these amendments. Again, what does it say in here? It says that the government “would propose amendments to broaden the scope of AI systems...and align with evolving international discussions.” Then it goes on to say—this is on page 4 of the attachment—that the government “would propose amendments in which sections 8 and 9 of AIDA would be replaced with new sections laying out [these] responsibilities”, and then there is what I'll call a page of general descriptions of those responsibilities.

Again, how is a lawyer—and we have lots of lawyers coming to appear on this bill—or a privacy expert, or a company that is in this business—or a company that has to make a presentation to this committee about whether or not this bill sets out a proper public policy framework—to cover the things that we need to cover if we can't actually see the legal wording? That legal wording is what will cause companies to be fined up to 5% or 10% of their global revenue, I believe, and be sentenced to up to five years in jail if they breach this. These are serious penalties that the minister has in here.

On the one hand, we have some of the largest companies in the world saying this summer that artificial intelligence is an existential threat to humanity's existence. We have others we have all talked to. I know the minister said the department has met with 300 people. I'm sure some of those were professors and other people in the industry who have said that at this stage it's just another version of supercomputing.

There's a lot of work that has to be done to understand what the government is trying to set out in a legal public policy framework, which then gives it its own regulatory framework to design stuff without going back to Parliament.

It's vague. The bill is vague. The letter is vague. I'm not a lawyer, but I've dealt with enough lawyers in my life and I've dealt with enough lawyers in this role as shadow minister for industry to know that every single word in this bill matters: what that word is, where it is, what clause it's in, what its priority level is, in clause 5 and other clauses—whether an individual's right is balanced with an organization's right, or whether an individual's right is superior; whether it is more important than that of an organization or less important.

These are the things that witnesses want to talk about based on the legal wording we have. The minister has said that the legal wording we have is not the legal wording that's going to exist in the bill from the government's perspective. That's wasting the time of witnesses to come before this committee to comment on a piece of legislation whose key provisions.... These are not minor technical errors or translation errors. These are fundamental, high-level public policy frameworks.

The minister came here and started this off by saying that he is going to make these amendments, which means that everything we're reading in this bill, in these sections, is useless for any witness to come and comment on. The letter is useless, because it doesn't provide legal language. No lawyer in their right mind would say that they're going to go to court and defend their clients based on this vague, general wording. They want to see the legal wording.

If the minister had come here and said, “It's a great bill. It's marvellous. There have been lots of meetings, and it does great and wonderful things, so let's get on with it”, guess what we'd be doing right now. We'd be hearing from witnesses, and then he would have amended it in clause-by-clause, but he didn't. He chose to come here and say that his bill is flawed in eight key, high-level, strategic areas.

I do not believe that he came and said that without the authority of cabinet. If he did, I would suspect he's going to have some trouble with his cabinet colleagues. He came here and said that he was amending these eight areas. He said that these fundamental areas in the bill are going to change, but he's not going to tell us what they are until clause-by-clause.

It's a reasonable compromise in my motion, if somebody wants to add it to the appropriate paragraph, to say that the three privacy amendments need to be here before we start seeing witnesses, other than officials. We need those three privacy amendments because we've chosen as a committee to break up the witnesses, primarily in the first 10 or whatever meetings—it's still in fluctuation—on privacy. The details of AIDA will happen, and those witnesses will be at the back end of the witnesses. The three privacy amendments can be tabled now or in the next few days.

I'm willing to allow that over the next six weeks the department and the minister, through his members on the committee, can work on and table the other five amendments to AIDA, to give them the time to take that through the process. I just do not think it's appropriate to allow these hearings to progress and to hear from witnesses who are going to talk about this bill but not about what the bill is going to be.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Perkins.

Just before I go to Mr. Masse, I give my apologies for not leaving the floor with you earlier. That was not my intent. I misunderstood.

Mr. Masse, the floor is yours.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

I'll be supporting the motion, but I have a couple of amendments.

Briefly, this is a train wreck for no reason. We had Bill C-27 tabled in the House of Commons. The reason it's tabled in the House of Commons and goes through first reading is so that we can have discussion and it can be publicly examined, not only by ordinary citizens but also by the groups that want to have input. That's why we have a process of debate. It took a long time to get out of the House, and it came here.

I won a prima facie case in the past because my ability as an MP was impeded by the actions of another government. It resulted in changes, to this day. This is how I view it: You had the minister come forward. He talked about amendments. There were going to be goals and objectives from those, which had to be clarified. After this was clarified, I had a point of privilege, and then it was admitted there weren't amendments. Government members went back to saying, “Tell me more about these amendments.” We're back to where we shouldn't have to be. I've heard nothing but shock from people who are interested in this bill. What is the government's agenda on this?

I think it is a fairly reasonable approach—and that is my appeal—to look at getting the three privacy ones in front of us. In fact, it should be separate legislation. However, the government created flawed legislation by putting three acts together when it probably shouldn't have done that. That was a critical error to begin with. This was raised, and it's probably one of the reasons why, structurally, we have issues right now. There's no reason we can't do some of these things separately. In fact, it would have been wiser and we would have actually gotten things through.

To me, the minister can't just come here and say, “Okay, we have eight specific amendments” and then not provide them—not for us, but for the other people coming here. We have groups and organizations paying lawyers to draft legalese and make submissions to us. They need to know what's in front of us. We don't have that anymore. That's terribly unfortunate. Having the background letter from the minister is fine, but I also want to go over a best practice.

I knew it was going to be bad when it began, because the minister.... A lot of times, ministers come to committees with prepared documents and table them for members to go through while they give their presentation. That's a fairly common practice. A minister will come with a preamble and even the material they will present. Not only did we not get that.... I asked for that. I made a joke about how we'd have to put that testimony into ChatGPT to create the amendments for the minister, because that's all we have to go by.

I want to see whether we can move forward with some consensus here.

I would like to amend the motion to have the three privacy amendments...and I would also like to make an amendment to drop section (f). The reason for dropping section (f) is that—I'll be quite frank—I don't need the minister to come here anymore. I just need his amendments so others can see them. I don't need to have another group of clown cars showing up and distracting us from the work we have to do. That's what this is about. For my part, I would like the three privacy amendments to be tabled, and I don't need the minister to come here anymore. I want to get on with the work here. I can't have people continuing to speculate about what they have to present in front of us. It continues to be like a dog chasing its own tail. That's what we're doing right now.

I'd like to amend section (e) for the three privacy amendments; it can just say “privacy amendments”. Then I'd like to drop section (f), because I don't need the minister to come here.

[A voice]

The minister is in section (a).

[Brian Masse, NDP, Windsor West, ON]

I'm sorry. Thank you. Yes, I got it wrong. It's section (a).

I don't need the minister here anymore. If he wants to come, he can come.

[The Chair, Liberal, Joël Lightbound]

There's now an amendment by Mr. Masse on the floor to the motion we're discussing.

Could you sum it up again, Mr. Masse, so we're all clear on what your amendment is?

[Brian Masse, NDP, Windsor West, ON]

It's for section (e) to be just the privacy amendments. I know exact wording would be best, so I'm open to that. Then we drop section (a), not section (f). I'm sorry.

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

Could I make a suggestion on that?

[The Chair, Liberal, Joël Lightbound]

I think Rick has a suggestion on the wording for section (e).

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

MP Masse, if I'm hearing you right, section (e) starts out with “orders the Office of the Law Clerk and Parliamentary Counsel to produce copies of the texts”, and then instead of “of any amendments to Bill C-27”, it would read, “of the three privacy amendments”.

[Brian Masse, NDP, Windsor West, ON]

I am worried that if they drop one, though.... Should it just be “Privacy Act amendments”, or do we want to keep the “three”? He did say three, though.

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

There are three. The other five are to the AIDA.

[Brian Masse, NDP, Windsor West, ON]

Okay, let's do it that way.

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

Then we can say, “You can produce the AIDA amendments by....”

[Brian Masse, NDP, Windsor West, ON]

Absolutely.

I think this is a good compromise for us to get back on track as a committee, to not have a distraction and to have some expectations delivered.

Again, I'll leave it to you, but I don't want to get down a wormhole of trying to bring the minister here and all that. I understand the reasons why, so I'm not being critical about that, but I really want to get on with the work here, so I don't need the minister to come here again and go through that again. I don't need another Abbott and Costello skit—if you're old enough, you'll remember these things.

[The Chair, Liberal, Joël Lightbound]

We have the amendment by Mr. Masse on the floor. It is up for discussion before we vote on it. You've all heard the terms.

[Brian Masse, NDP, Windsor West, ON]

As Mr. Perkins has noted, section (e) is adding the three privacy amendments.

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

It would be “copies of the text of the three privacy amendments to Bill C-27”.

That's the last one, MP Turnbull, on the first page.

So, it's “copies of the text of” and then, instead of “any amendments to Bill C-27”, we have “the three privacy amendments to Bill C-27”. We would also drop paragraph (a) above.

[The Chair, Liberal, Joël Lightbound]

Mr. Lemire wanted to comment on the motion itself. Since the amendment takes precedence, are there any comments on that?

[Ryan Turnbull, Liberal, Whitby, ON]

I wonder if we can have a short pause to review the wording. It's a lot to consider here—the whole thing with the amended version of it. It's just so we can have a huddle on it.

[The Chair, Liberal, Joël Lightbound]

I'll grant about five Liberal minutes.

[Voices]

Oh, oh!

[The Chair, Liberal, Joël Lightbound]

We can now resume, honourable members.

Mr. Masse has something to propose to amend his amendment.

The floor is yours, Mr. Masse.