Evidence of meeting #38 for Public Safety and National Security in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was data.
A video is available from Parliament.
Liberal
Conservative
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Chair, I'm fine with MP Lloyd going first. He has a train of thought.
Conservative
Dane Lloyd Conservative Parkland, AB
Thank you.
I really do appreciate the explanation from the clerk. We know that accidents like this happen.
I was told that we could access the blues within the firewall on our devices. I have my House of Commons phone here. I just looked, and the blues are not available on my House of Commons phone.
You know, despite the fact that this does look like it was an honest mistake, given the gravity of the legislation we have before us, I feel that I've been really disadvantaged and that my privilege has been violated by not being able to have the correct information available to me in order to participate in the session. I'm looking for some guidance from the chair. I believe my privilege has been violated here.
Liberal
The Chair Liberal Jean-Yves Duclos
Thank you. I'll take that into consideration and work with the clerk—not now but immediately after this meeting—to see, with everyone else's input, what we can do to facilitate the important work that needs to be done in such a short amount of time.
Everyone, please note that you now have the document shared earlier by the commissioner. We can use that with our teams to move forward.
Again, I'll come back to this aspect of the breach of privilege, which you correctly stated.
Having said that, MP Caputo, would you like to say something before we turn to MP Lloyd for his five minutes?
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
Yes. I'll intervene just briefly.
Given what Mr. Lloyd has reflected on, that his privilege has been breached, and not even as a prima facie breach but as an obvious breach, I would ask, Mr. Chair, if you and the clerk would be able to canvass the Privacy Commissioner's ability to return next week and, in any event, prior to clause-by-clause consideration.
I also think the appropriate remedy here is that we do not have amendments close tomorrow. I think it's very obvious that this is the only remedy in what is already a very rushed process. I think this is symptomatic of the fact that we have been moving very quickly. I do not place any blame on the clerk. These things happen. Mistakes happen. We've had four-hour meetings. We're in the midst of another four-hour meeting.
I won't say any more. Thank you.
Liberal
The Chair Liberal Jean-Yves Duclos
On that, first, we have important work to do now, so I suggest we do it now. Second, as I said, I will review the matter of the breach of privilege raised by MP Lloyd, and third, thereafter, we will work together—I'll work with you in particular, MP Caputo—to see how the suggestion of changing the schedule for consideration of this bill may be accepted by other members of the committee.
Conservative
Frank Caputo Conservative Kamloops—Thompson—Nicola, BC
I am concerned, actually, Mr. Chair. This is something I'm thinking about contemporaneously here. Does a question of privilege not need to be dealt with now, at the first possible instance? I would ask that you please consult with the clerk if we need to suspend. It is important that we get this done right, not that we get this done quickly.
Liberal
The Chair Liberal Jean-Yves Duclos
Questions of privilege don't have to be decided now by the chair. I can ask for the indulgence of the committee to reflect on that—with the assistance of the clerk, obviously, and others—after the meeting to see how we proceed there. If it were a point of order, it would be different. This is a question of privilege, and I can take it into consideration after this meeting.
I would advise the committee that we do this and take advantage of the witnesses who are now present to push forward the analysis of the bill under consideration.
Having said that, would you like to start your five-minute intervention, MP Lloyd?
Bloc
Claude DeBellefeuille Bloc Beauharnois—Salaberry—Soulanges—Huntingdon, QC
Mr. Chair, I want to echo the important point Mr. Lloyd made. I was waiting for that brief to prepare amendments. I'm always shocked at the fact that the Privacy Commissioner of Canada's recommendations are never taken into account before measures are drafted. I was eagerly waiting for the brief, because I knew what a tight deadline we had.
I think the point of privilege is relevant. I think it's really important to look at how you're going to proceed. We want to feel that we're able to submit those recommendations and that the commissioner's comments have been taken into account.
Liberal
The Chair Liberal Jean-Yves Duclos
As I said a moment ago, I will consider the matter. The information should have been available a while ago. It's available now. It's a four-page document. As the commissioner himself said, the recommendations are well laid out. They are clear and should be fairly easy for committee members to understand.
That said, I suggest we resume the discussion with the witnesses we have today. I can give you the various experts' opinions and recommendations, including the clerk's, after the meeting.
I hope that's okay with you, Mr. Lloyd. We need to keep going. Otherwise, things will have wait until the next meeting.
Conservative
Dane Lloyd Conservative Parkland, AB
Thank you to the witnesses.
Commissioner Dufresne, we had another witness here today who said that he believes the reasonable suspicion threshold for subscriber data is too low. Do you have thoughts on that, or is that outside your scope?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
I would think it's too low with the current framing of the scope of subscriber information: the definition and the parties that can receive it. My recommendation is to fix the scope. If you fix the scope, I think you can keep the suspicion, but if you don't, that would be the alternative.
Conservative
Dane Lloyd Conservative Parkland, AB
Okay. Thank you for that. You're giving us multiple options here.
What are your thoughts about the non-disclosure rules? If an authority goes to an electronic service provider for a subscriber request, they can place a non-disclosure so that the provider can't tell the subject of that request that there's been a disclosure. What are your thoughts on that?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
There could be some valid reasons for that confidentiality. There are improvements in the bill in terms of reports from the minister to Parliament and so on.
One of the gaps I'm identifying in my eight recommendations is that the confidentiality would prevent the provider from notifying my office if there's a breach and if there's relevant information in a ministerial order. That is, in my view, a gap that should be addressed, because it prevents us from doing our work.
Conservative
Dane Lloyd Conservative Parkland, AB
Would it be fair to say that your recommendation is that any time an authority asks for subscriber information your office be notified?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
Not necessarily, but I would not want to have the confidentiality provision prevent sharing of information where it's appropriate: with my office, for instance, in a privacy breach. That's the most obvious situation.
When we're dealing with this issue of subscriber information and the encryption, the safeguarding of information is absolutely key.
Conservative
Dane Lloyd Conservative Parkland, AB
Yes. I think there are cases where non-disclosure is absolutely necessary: for example, active investigations. Do you think adding judicial authorization when seeking a non-disclosure order would be an appropriate way to strengthen?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
It strengthens it from a privacy standpoint. You would have to weigh that with the impact on the police work. This is not one of my priority eight recommendations that I've made, but it's a consideration.
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
I suspect it would create some delays.
Conservative
Dane Lloyd Conservative Parkland, AB
Okay. Thank you.
Now, about metadata, there's been a lot of talk about a requirement to hold metadata for a year. You talked about “necessary and proportional”. Is it necessary and proportional to hold the metadata of all Canadians for up to a year?
Privacy Commissioner of Canada, Offices of the Information and Privacy Commissioners of Canada
I think that condition of necessity and proportionality has to be there whenever you exercise that power, whether it's cabinet in terms of the orders or whether it's the minister. With that framing, you're going to deal with it on a case-by-case situation. There may be situations where it's so severe and it's so significant that there may be some reasons. That would be for the government to provide that or for the police to provide that. I don't want to prejudge it. Without that framing, then, you risk having the orders being too long and too broad. This is why necessity and proportionality are such a key part of privacy law.