Public Safety Committee on May 7th, 2009

[Paul Cavalluzzo]

With the new anti-terrorism legislation the RCMP was given new national security responsibilities. You may recall that in 1981 the McDonald commission said the RCMP should get out of the national security game, and that is why we created CSIS. In any event, we brought them back into the national security game in 2001, and there was very little training for these front-line officers in national security issues.

As a result, these were good police officers, but they had no idea of the impact of the exchange of this kind of information, particularly with the Americans, and they had no idea that just because a piece of intelligence says this guy's neighbour says he's a member of al-Qaeda, you can't rely on that, that this is just information or intelligence. You have to analyze it, you have to corroborate it, and so on. Before you send any information like that, you'd better be sure it's accurate.

So for the most part it was really, unfortunately, a lack of training. I don't think there was any malfeasance, but certainly these people were not competent to be sharing that kind of information.

[The Chair, Conservative, Garry Breitkreuz]

We'll have to move to the government side now.

Mr. Rathgeber, please.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to all the witnesses for your attendance today and for your expertise.

I find this topic quite fascinating and also very troubling, and I certainly share some of the concerns of my friend Mr. Davies. I too have some background with respect to freedom of information and protection of privacy. I chaired the review of the Alberta statute in the Alberta legislature.

Picking up on his question about inaccurate information, maybe this is just purely semantic or definitional, Ms. Stoddart, but I agree with his concern. Does personal information apply to information that is inaccurate? For example, I do not have a criminal record. If somebody were to disclose that I did, is that considered to be my personal information? Because it is not my personal information. It is wrong.

[Jennifer Stoddart]

You hit on a very important point there, honourable member. One of the bases of not only the Privacy Act but generally fair information principles is that the information about an individual has to be accurate. That individual, in democratic societies, has to have the right to have that information corrected. That's in fact a large part of what our office does.

What we see here are very particular cases of inaccurate personal information, unverified—and this is from the Iacobucci report and I believe the Arar report—being shared in a rather informal fashion. Again, it's not consistent with fair information principles about a very strict definition of the use to which you put personal information and accountability for the use of that personal information subsequently put.

This is one of the reasons that I think Privacy Act reform—Privacy Act applies to all the government agencies—is so important to give citizens a broader right to complain about inaccuracy of their personal information and, if the information is not corrected, to take it on to Federal Court. Right now, they don't have that right. It's a very truncated right. If they had had this kind of right, some of these cases may in fact have taken another turn of events.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

In your opening comments, you quoted from Ms. Bloodworth, talking about privacy rights of citizens and ensuring physical security. You went on to make an interesting statement, that not only is this the greatest single issue that our Parliament must confront, but that security and privacy are not mutually exclusive.

I'm troubled by that concept. I certainly agree that both privacy and national security are invaluable goals that we must promote. But how can they not be mutually exclusive? I would suggest that in the unfortunate circumstance of Mr. Arar, an overzealous attempt to promote national security severely jeopardized and compromised his privacy rights and ultimately his human rights. In other situations, we could quote anecdotally that protection of privacy rights might have compromised national security.

I'm curious as to how they cannot be mutually exclusive, although I agree with you that they're both goals that ought to be zealously promoted.

[Jennifer Stoddart]

What I'm saying is that we don't have to continue to think about them as always being mutually exclusive. That's the challenge of the society that we live in. We have to protect our citizens. That's probably the number one role of government right now—physical security, integrity, safety. Those are basic human rights. Also, a basic human right is privacy, which means autonomy, which means freedom, which means our sense of liberty.

We have to organize, in our society, our processes and our laws in new ways to preserve them both so that one intrudes the least possible on the other. This is the challenge, because in the late 20th century Canada was fortunate in having a minimum of national security threats. Our privacy just came naturally because we were not a society under any kind of threat, compared to other societies where there were long histories of wars, invasion, persecutions, and so on. As we go forward, I am saying they are not in themselves, by nature, always mutually exclusive. That's what we have to aim to do.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm going to have to think about that a little bit more, but thank you.

Mr. Cavalluzzo, I read Justice O'Connor's report, or at least most of it, with great interest. I have a couple of questions on the creation of the independent complaint review committee.

First, why not just expand the role of the existing RCMP complaints committee, Mr. Kennedy's committee?

Secondly, I'm asking about your opinion or maybe his opinion vicariously through you. With all of these different committees—SIRC and the independent complaints review committee that Justice O'Connor recommends the creation of—how does that promote the coordinated and consistent approach you talked about? It appears to me that it's still a hodgepodge of different jurisdictions and different agencies.

[Paul Cavalluzzo]

Okay, in respect of Mr. Kennedy's committee, what Justice O'Connor talked about was a restructured CPC, so that the new independent review committee would have much broader powers than the CPC, including national security, as well as just general law enforcement powers, and that would be the new RCMP committee. So it's a restructured Kennedy committee, with much broader powers.

On the second point, in terms of coordination, the point once again of this new committee.... This isn't the RCMP committee, but there would be a broad coordinating committee, which would be composed of the chairs of the new RCMP body, SIRC, and the CSE commissioner, and national security complaints would be filed with this new coordinating committee. And the new coordinating committee would look at the complaint and say, “I think SIRC would be the body to deal with this”, or he or she might say, “This involves the RCMP as well as CSIS, so I think both CSIS and the RCMP new committee should conduct a joint investigation.” And certainly there would be new legislative gateways so that these bodies could act together, exchange information, and conduct joint investigations.

Where Justice O'Connor went to school, so to speak, on this is that there are foreign committees that conduct these kinds of joint investigations, and that way you have total control of the integrated investigation that has gone on, because there will be one committee acting--or could be acting-- together that would cover all of the Canadians that are engaged in national security.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

I suspect my time is done.

[The Chair, Conservative, Garry Breitkreuz]

Yes.

We'll move over to Mr. Oliphant now, please.

Five minutes.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you.

And thank you, again, for being with us today.

With all due respect to my colleagues across the way, without wanting to get into a sermon, I wanted to quickly raise three points.

Despite having read the report...this report is simply not about sharing of information in general that may be government information; this is about sharing wrong information, misleading information, inaccurate information, and damaging information that has hurt people's lives. Recommendation after recommendation in Justice O'Connor's report is about people who are Canadians.

That falls into my second point, which is that not only are privacy and security not mutually exclusive, they're intimately bound together and cannot be released from each other. We are not safe if we do not have the ability to have our privacy protected. We have a false sense of security. It's not that they're possibly not mutually exclusive; they are absolutely entwined with each other or our Canadians are not safe.

That's the end of my sermon. Excuse me. Amen. I want to preach.

I'll get to my question. The bulk of this report is about privacy and information. The bulk of the recommendations have to do with information and inaccurate sharing of information. That puts us into the concept of labelling and what happens when people are labelled, which is bad enough, but when we share the labelling with either agencies within this country or, worse, outside this country with partners who are not dependable, we have a huge problem. And the report is very clear, in recommendation 5 I think it is, that the minister should be issuing ministerial directives to ensure that labelling does not take place by the RCMP or any of the other agencies that are involved in this.

Are you aware of any ministerial directives that have been released since 2006--we're now in 2009--since this report was issued?

[Paul Cavalluzzo]

I am not, but that doesn't mean it hasn't happened. I'm in private practice now, doing other things, and so I'm not aware of whether such a directive has been issued. Certainly there was a recommendation that it be issued, but I'm not aware of it.

[Jennifer Stoddart]

Yes, I'm aware, and I'd ask maybe Mr. Baggaley if he could talk to this.

I believe Treasury Board is working on a directive of this kind, because members of my staff have been consulted.

[Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada]

What I wanted to comment on was that Justice Iacobucci specifically raises the issue that you referred to. In fact, one of his findings is to suggest that in fact it's a practice to send information to another country labelling someone as an Islamic terrorist, or something else, as a kind of fishing expedition to determine whether or not the receiving country can either confirm or deny that allegation. Although Commissioner Iacobucci doesn't make any recommendations in his report, as you may know, he comes very close to suggesting a recommendation, and he strongly disapproves of that type of practice where it's done deliberately. It's not being done because they're not quite sure, but according to the justice, it's being done as a kind of fishing expedition.

[Rob Oliphant, Liberal, Don Valley West, ON]

My concern is that the labelling practices that we became aware of as a result of O'Connor and Iacobucci continue to this day, and this is affecting my constituents. They and their families are labelled when they try to cross the border and when they're met by CSIS agents, who want to interrogate them about issues constantly. It's a practice that I think is extremely dangerous for our security. I think it's intimately related to our security, because if one Canadian is not safe, we're not safe as a society.

It seems to me that the Office of the Privacy Commissioner has to constantly be vigilant on this issue, as you are, but what else can we as a committee do to help you do this work that we value so greatly? You're suggesting we have more resources to do our work; what else can we do to be supportive of you and to protect Canadians?

[Jennifer Stoddart]

By raising the issues and by raising interest in the various aspects of privacy--and there are many--parliamentary committees in the last few years have helped to make Canadians much more aware of their privacy rights and how they can be improved, so we certainly appreciate your attention to the issues and the recommendations that come out of the various committees. For example, our own ethics committee on Privacy Act reform would have an impact on the issues we're discussing here, because one of the things I hope they recommend is to put in a necessity test for collecting information. This is a basic principle of fair information--principles around the world. If there had been a necessity test applied to the use of the collection of information by national security agencies, we might have another story today.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. McColeman, please go ahead.

[Phil McColeman, Conservative, Brant, ON]

I want to thank all of you for coming and sharing your expertise. Certainly the depth of knowledge is extensive here, and we're learning a lot in trying to move towards doing the right thing by protecting public safety while balancing the rights of individuals.

Although it really wasn't the direction I was going to go in, I'm interested in following up on the commissioner's comment on the necessity test.

You said earlier that the first violation was the violation to their privacy, if I might paraphrase what you were saying. What is the test of crossing the line on privacy? Is this the necessity test that you just referred to?

[Jennifer Stoddart]

There are many components of fair information, which is part of our privacy. Our privacy can have many dimensions, but in terms of information about us, you go through the sequence of how the information circulates about us. One of the fundamental principles is that an organization collects only the information it needs, not just any information it can hoover up, any information it might find about you that it would keep just in case it could be useful some day. The principle is to collect only the information that is actually needed, because it is actually your private information.

Then we go on to other principles, such as the requirement for the information to be accurate and up to date. You only share it for purposes that are, as our own Privacy Act says, consistent; that is, they're roughly equivalent, or they're compatible with, the reason for which it was initially collected.

All this is to prevent government agencies or the government itself from turning us into a surveillance state that has all kinds of information on individual Canadians that it can't justify.

[Phil McColeman, Conservative, Brant, ON]

I appreciate where you're going on this continuum of a police state in which we collect too much information on individuals, but let me suggest something to you and get your reaction.

Part of my experience was on an oversight body for police services in my community. The reality in a lot of situations is that because we are human, there's going to be human error, and this human error is going to mean that sometimes bad things happen that shouldn't happen to people. That's unfortunate. I'm not diminishing any of the reports that have come out, but I'd like you to address that and assist this committee in terms of your thinking on this continuum, because the collection of information, the determinations, and the judgments made as to whether we should go down this road or another road are all subject to errors by individuals and to human error along the way.

I don't think we can have a playbook saying that if this happens you do this, and if this happens you do that. What are your thoughts as to where you strike this balance or determination on where you head with information?

[Jennifer Stoddart]

Could I ask Assistant Commissioner Bernier, who is a specialist on the Privacy Act, to answer?

[Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada]

I would say that it is precisely the reality of human error that begs for oversight, review, remedies for correction. As the commissioner said before, privacy rights include the right to accurate information as well as the right to have inaccurate information corrected, so your own statement is precisely the basis for the necessity of proper oversight mechanisms, which is what we are putting forward.

[Phil McColeman, Conservative, Brant, ON]

I'll probably have time for one last question here.

We had representation from the British Parliament on their oversight mechanism for national security. Are you familiar with that model? This is one whereby the Prime Minister appoints senior parliamentarians, people who really have no agenda to move through the political process, because as you can see from our interaction here, things become politicized very easily at this level. In a serious matter such as national security, I wish it weren't that way, frankly. I speak for myself here.

Having said that, the British model is one in which these parliamentarians operate in a fairly secretive environment. They get the very details of what has happened and have to be sworn to secrecy on a lot of these matters. They're hand-picked by the Prime Minister and report to the Prime Minister of Britain.

What do you think of that model?

[Chantal Bernier]

I am familiar with it and in fact have had the privilege of meeting them as well.

We have discussed it at the OPC. We feel that its transferability to Canada must be assessed by the competent authorities. If such a proposal were to be put forward, we would obviously look at it through the lens of the Privacy Act. We do not have a position at this stage.

[Phil McColeman, Conservative, Brant, ON]

That's interesting. Thank you.