Evidence of meeting #30 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was heard.
A video is available from Parliament.
NDP
Ève Péclet NDP La Pointe-de-l'Île, QC
But the bill does not contain any provisions on data destruction, for instance. So an individual would not be notified that their information may have been disclosed on grounds of reasonable suspicion. In addition, there would be no obligation to destroy that data.
Do you think a relevant provision should be added, so that an individual's privacy can be respected?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
The preservation of evidence applies to a certain period of time. Once that period has elapsed, the data is destroyed. However, when it comes to access, you are talking about something else.
I don't know whether my colleagues have anything to say about data destruction. As for the preservation of evidence, unless I am mistaken, the evidence is destroyed by default once the set period has elapsed.
Conservative
The Chair Conservative Mike Wallace
Okay.
I'm sorry, that's your time. Thank you very much, Madam Péclet, for those questions.
Our next questioner from the Conservative Party is Mr. Dechert.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Mr. Therrien, you have mentioned a couple of times the so-called immunity provision in the bill. I believe it is proposed new section 487.0195 of the Criminal Code.
Are you familiar with section 25 of the Criminal Code of Canada?
Are you familiar with some of the case law under section 25, including the decision in R. v. Ward, the judgment of Mr. Justice Doherty of the Ontario Court of Appeal?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
No, I am afraid not.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Are you familiar with the Spencer case that Madam Boivin—?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
In a general sense I am, yes.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
All right.
We previously heard from Mr. David Butt. He represented the Kids' Internet Safety Alliance. He's a former prosecutor and has argued many cases before the Supreme Court of Canada.
He said a number of things about the bill. He said that we should all ask precisely what pre-existing privacy rights bill C-13 takes away, and the answer is, precisely none.
He went on to say that the bill does not expand police powers to obtain information without a prior court order. So any suggestion that Bill C-13 authorizes more invasive warrantless cyber-snooping is an urban myth.
Specifically on the point of section 25, he asked whether the police can ask ISPs to provide voluntarily information about the Internet profile. Again, the answer is very little—just a subscriber’s name and address. That is all.
It was his view that this bill, and the provision we're talking about, simply codify section 25 and the case law. Do you agree or disagree with that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I would go back to the view I expressed earlier; that is, that this provision, we find, would send a signal to telecommunications companies to voluntarily disclose to law enforcement agencies more information than is currently the case. Our view is that this kind of activity should take place under defined parameters, under clear legal thresholds, with transparency mechanisms, and with reporting mechanisms.
The concern we have with this particular provision is that it lacks these standards or safeguards, which we think are very important.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
The Department of Justice officials appeared before our committee and made the case that section 25, taken with case law and R. v. Ward and other cases, simply codifies and does not expand the law on this point.
Do you agree with the Department of Justice officials?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I would ask Ms. Kosseim to answer this, please.
Senior General Counsel and Director General, Legal Services, Policy and Research, Office of the Privacy Commissioner of Canada
Thank you, Mr. Chair.
Thank you for the question.
There are two competing views on the impact of the immunity clause. One is that it is inserted for greater certainty and in fact doesn't change anything. On the other hand, a competing view is the question that is before the Supreme Court right now, and that is whether this immunity clause in its current form creates a new source of lawful authority for the purposes of PIPEDA, our enabling legislation.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
So you would agree that it is arguable, and it is an argument that many people hold, that this provision does not expand the law.
Senior General Counsel and Director General, Legal Services, Policy and Research, Office of the Privacy Commissioner of Canada
We argued that in fact it should not be interpreted or applied that way. In that case, it was actually interpreted and applied in a way to create a new source of lawful authority.
Those are the two competing arguments before the court, and we will await their decision to see what the outcome is.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
That's fair enough. So will we all.
Are you familiar with the testimony of Mr. Gilhooly, who testified before the committee a few weeks ago?
Mr. Gilhooly is a former corporate counsel. He was also a victim. I believe he was formerly corporate counsel to a large media company. When I asked him what, without this provision, he would advise, if he were advising his client whether or not they should comply with a police request, his response was that as corporate counsel his job is to protect the client, so he would advise not to disclose.
Just so you know, I too was in that position many times—advising corporate clients—and I can tell you that my instinct would be to do likewise, to not disclose if there were any possibility that the company could be held liable, criminally or civilly.
What is your comment on that?
Legal Counsel, Office of the Privacy Commissioner of Canada
I think fundamentally the issue boils down to the lack of clarity around what the provision in PIPEDA 7(3)(c.1) amounts to in practice. In our view the current protection against liability in section 25 is probably sufficient and the best source for directing energies toward clarifying the law would be better interpreting 7(3)(c.1).
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
I would say in response, as a former corporate counsel, I disagree with you, and so did Mr. Gilhooly, and so, I think, many other corporate counsel.
Mr. Therrien, I would like to ask you about the time required to obtain a search warrant.
Mr. Butt, in his testimony to the committee, gave us an example. He said if we had to go to get the subscriber name and address via a search warrant, which he contends is what is generally provided by Internet service providers when requested by law enforcement, it would take routinely 60 days to do that.
How quickly do you think investigators need to act to obtain the information about who sent the cyberbullying message, perhaps with an image attached, in the Internet age? How quickly do the authorities need to act in your opinion?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I don't know the exact time period. I will say that preservation orders are meant to protect that period to obtain that information. I don't know if my colleagues have anything to add further to that, but that's what preservation orders are for.
Conservative
The Chair Conservative Mike Wallace
Thank you very much. Thank you for those questions and answers.
Our last questioner is Mr. Jacob from the New Democratic Party.
Pierre Jacob NDP Brome—Missisquoi, QC
Thank you, Mr. Chair.
I want to thank the witnesses for joining us today.
My first question is for the commissioner.
A recent statement titled “Ottawa Statement on Mass Surveillance in Canada”, which was signed by many professors and representatives of various organizations, indicates that the powers of the Privacy Commissioner should be proportional to the quasi-constitutional nature of privacy rights.
Do you agree with that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I think that the Privacy Commissioner's powers should be considerable and that privacy rights are of a quasi-constitutional nature.
NDP
Pierre Jacob NDP Brome—Missisquoi, QC
Okay.
Do your current resources and powers enable you to adequately protect the privacy of Canadians?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Allow me to pass this question to Ms. Kosseim, since I have only been with the office for three working days.
I have an amazing team behind me. However, I cannot say at this point whether it is large enough.