Public Safety Committee on April 23rd, 2018

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

That's correct, which would make PV-5 identical, for all intents and purposes, to NDP-24.

[The Chair, Liberal, John McKay]

I believe that's in order, so first of all, we'll have debate on Mr. Dubé's subamendment to PV-5.

Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you, Mr. Chair.

The concerns I've had with Ms. May's amendment and with Mr. Dubé's relate to undefined concepts and ambiguities that could be posed here as an unintended consequence. For example, what is meant by “selected audience”? Why is information "purchased illegally" excluded when information obtained illegally through other means is not?

On top of that, all of CSE's activities would also be subject to review by the proposed NSIRA and the National Security and Intelligence Committee of Parliamentarians.

[The Chair, Liberal, John McKay]

Thank you.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

On the point of information purchased illegally, it's simply seeking to add greater clarity, but when it comes to information that has been published or broadcast only to a selected audience, I think we have a great example in the news lately, which is Facebook. We heard officials from CSE confirm that the information obtained by firms like Cambridge Analytica would be included under the current definition of “publicly available information”. I think it's important to add that clarity to the definition.

A lot was made by officials—and we get to that later—of this concept of the reasonable expectation of privacy. Speaking to my subamendment, I think that's why it's important to have it as part of the definition. In this era of social media, when we're talking about information that could arguably be publicly available, but where the person had no intent of broadcasting it to a larger audience and then scooped up in the activities carried out under part 3 of the bill, it's pretty fair to say that, if we want to take the privacy of Canadians seriously, this is the type of robust definition that's required.

[The Chair, Liberal, John McKay]

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'd like to check with the officials on whether their opinion is that this would inhibit the ability of CSIS, CSE, and others to do their jobs. I guess in this particular case, it's CSE.

[Scott Millar]

I'm happy to speak to that.

I think it's important when looking at the “publicly available information” proposed amendments, as well as “a reasonable expectation of privacy”, to explain again the purpose of this provision.

First of all, we're not a domestic investigatory body. We don't build dossiers on Canadians. That's not within our mandate.

Second of all, this is meant to reflect the kind of information that we access now, reflect that transparently by way of legislation. The information that we access now in furtherance of our mandate is reviewed and reviewable by the current CSE commissioner—reviews as per privacy matters. It is not meant to broaden information that we have access to. It's basically to say that we will use information that's available to any Canadian, any other department or agency, parliamentary research or what have you, in the furtherance of our mandate.

That is there to provide clarity for those who will review us that when we're doing that kind of thing—looking at a CBC website or what have you—we are not directing our activities at Canadians. The justice charter statement around Bill C-59 makes it clear that this is information that has a low reasonable expectation of privacy. Any kind of information we would acquire that could interfere with the reasonable expectation of privacy would be done under our ministerial authorization, and that explicitly states we cannot direct those activities at Canadians.

Just to make it clear, this is not a way to broaden information; it's to reflect information that's out there that anyone can look at. When we're doing that, we're not directing that activity at a Canadian.

[The Chair, Liberal, John McKay]

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Perhaps just for the record as we debate the subamendment and the amendment, there are a few points that I again remain unconvinced on.

Proposed subsection 24(1) says that despite the subsections which lead to the prohibitions on obtaining Canadians' information.... Then, obviously we go to proposed paragraph 24(1)(a), which says “acquiring, using, analysing, retaining or disclosing”. The word “disclosing” is important, because the information-sharing regime, which has changed names from C-51 in the last Parliament, but which still remains in place, uses the word “disclosing”. When the minister appeared before our committee, he specifically said that disclosing was meant to narrow the amount of information that would be shared, under the previous wording, between departments.

I'm wondering, if you say “acquiring, using, analysing, retaining, or disclosing publicly available information”.... We've been down this rabbit hole a few times with this committee, and I'm understanding that I will no doubt lose my fight—I apologize for my cynicism—to fix that part of the bill.

In the meantime, I think the least we can do to protect Canadians' privacy is to have the most robust definition possible. I know, at least in my experience as part of this committee process—and I of course say that with all due respect to officials who come—the tendency is to be averse to change and robust definitions. Again, I say that with all due respect.

I want to perhaps go back to officials, because we're talking about the charter statement. I don't think the charter statement, or even the charter itself I dare say, would take into account some of the new realities that we're dealing with as parliamentarians, in particular the information such as the information obtained by firms like Cambridge Analytica.

I'm wondering if I can direct my question to Mr. Millar. It's the same question that I asked you last time in committee. Would that type of information from Facebook fall under the current definition, unamended, as was drafted in the bill and be obtainable as publicly available information?

[Scott Millar]

I can assure you that this definition, “publicly available information”, would not allow us to acquire information that could interfere with the reasonable expectation of privacy of a Canadian, or anyone in Canada.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

How do we establish that? What's the test?

Chair, we've had months of talking about this, and there is uncertainty that I feel still exists around this. We can go back and forth again—and I appreciate the committee's indulgence—but I don't see a compelling argument on why you would not want to have a more robust definition.

I think when you compare what Ms. May is proposing, what I'm proposing, and then further on, the Liberal amendment, we're basically stating things that everyone keeps telling us are going to be done anyway. What harm is it in enshrining it properly in law? I do not for the life of me understand why that would be a problem, to enshrine principles that we say are going to be respected anyway and that are found in other places here and there when we start cherry-picking through the act.

[The Chair, Liberal, John McKay]

Ms. May.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Saying the charter statement protects.... I completely agree with Mr. Dubé. Many of these new areas are being litigated. The Supreme Court has confirmed that, for instance, certain cellphone conversations, electronic conversations, do have privacy protection under the charter.

As we go into new territory, we're going to be inviting legal challenges by not being very clear that we are not including in this information that has been published or broadcast only to a selected audience, or information that has been purchased illegally.

There can be no harm in having a confirmatory statement for clarity that would meet what Canadians expect. Frankly, having had the testimony from the Privacy Commissioner, Canadian Bar Association, and the Canadian Civil Liberties Association, they are concerned about the very same points raised by the NDP and Green Party.

I would love to see this section amended to better protect the privacy of Canadians, and ensure that publicly available information as a broad statement doesn't pick up things that we really don't believe should be publicly available information, either obtained illegally or only available to a specific, selected, particular audience.

[The Chair, Liberal, John McKay]

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Specificity is important in the context of these issues coming up in the digital world. Insofar as how consent is obtained by social media sites and so forth is rapidly changing concepts.

I understand the legislation needs to be nimble to that rapidly changing concept. I don't see anything in what either myself or Ms. May have proposed that would create some kind of unintended consequence down the road. The wording is vague enough when you look at things like the information that has been posted and broadcasted only to a selected audience. This can mean many things that you're not cutting it off.

Quite frankly, if anything, rejecting the amendments exacerbates the concerns that have been raised by many, including myself and Ms. May, over the course of the study of this bill.

If we don't want to have that in the definition, then what objective are we trying to achieve? I don't want to question anyone's intent, or the comportment of different agencies, so if everything is on the up and up as we're being reassured it is, then let's adopt wording that apparently meets the spirit of the law in the bill, as has been evoked by the other side.

I don't think there's any harm in doing that, if that's what everyone thinks is happening anyway.

[The Chair, Liberal, John McKay]

Any further debate? Seeing none, the first vote is on the subamendment, and then on PV-5.

(Subamendment negatived [See Minutes of Proceedings])

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Liberal, John McKay]

That would still leave NDP-24, but if NDP-24 is adopted, NDP-27 cannot be moved.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair. Before I forget, I would like a recorded vote on NDP-24, please.

I would just like to reiterate the following points.

Not only do I want to stress how disappointed I am with the rejection of the amendment and subamendment that my colleague from the Green Party and I have proposed, but I would also like to share my bewilderment about the rigidity of the definition. We are repeatedly being reassured that there is an intention behind the use of the data and the powers that we want to grant, but in what I heard about publicly available information, nothing in the definition I am proposing is contradicted by the testimony of the officials from the CSE or by what my Liberal colleagues want to see in their bill.

I leave the question open to Canadians. They are the ones who will have to put the question to the government and us, of course. If the purpose of the powers granted under clause 24 of part 3 of the bill is to do research, analyses and studies on Canada's information infrastructure, I cannot comprehend why we could not ensure that we have the most robust definition possible to protect Canadians' privacy.

[The Chair, Liberal, John McKay]

Is there any debate on NDP-24?

(Amendment negatived: nays 7; yeas 1 [See Minutes of Proceedings])

We have LIB-27.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

Similar to my colleagues with the Green Party and the NDP, this was something I asked when we had witnesses here about Canadians being caught up in the global infrastructure. This amendment ensures there's no information included around which a Canadian would have a reasonable expectation of privacy. I know we've had a fair amount of discussion about the other two amendments. I do think that what has been spoken about previously isn't encapsulated in the “reasonable expectation of privacy”. I know the officials have said they're not doing this now, but I think this amendment captures the spirit of what Mr. Dubé and Ms. May were speaking about, and does ensure that Canadians know that their information won't be captured when officials may be looking at information in that global infrastructure.

[The Chair, Liberal, John McKay]

Thank you, Ms. Damoff.

Is there any debate?

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you very much, Mr. Chair.

I am going to support my colleague's amendment, by putting a lot of water in my wine.

That being said, I completely disagree: his amendment will not achieve the same objectives as Ms. May's amendment or mine. Clearly, since our amendments were rejected, we will have to make do with his today, which is better than nothing.

I would just like to draw your attention once again to Ms. May's argument, which I find extremely important. These issues are subject to many disputes in Canada and around the world. Reasonable privacy expectations have evolved tremendously, particularly in recent months.

When we draft a bill and propose amendments, I think we must bear in mind the possibility that the validity of any given definition may be challenged, especially in a rapidly changing context. That's what we have heard from many witnesses. The wording of the Green Party of Canada and the NDP amendments was the one that best matched what those witnesses recommended.

Mr. Chair, I conclude by reiterating that I am going to support this amendment because I would rather have what it proposes than no protection, but I think it is inadequate in the extreme.

[The Chair, Liberal, John McKay]

Mr. Motz.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Mr. Chair, I'd like to have the officials weigh in, if they could, on providing us some context as to whether or not this amendment could have impact on the collection of intelligence.