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Interventions in the House of Commons
Interventions in Committee
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Blaine Calkins - 12:30
Mr. Buttarelli, thank you for sharing part of your evening with us.
Coming back to the theme that Mr. Saini had started off on, I wanted to come back to the question of the adequacy provisions in the GDPR. I just wondered if you could highlight for us some of the uses or abuses of data by third parties foreseen by the GDPR that its adequacy test is meant to prevent.
Giovanni Buttarelli - 12:30
If I could jump in, I'm curious to know whether you have an idea about the Comprehensive Economic and Trade Agreement that was signed recently between Canada and Europe. We've had experiences in Canada in which legislation that was passed for Canadians' public interest has been ruled out of order by international trade tribunals under the auspices of like agreements.
Is there any concern in your office that elements of the GDPR might be found to be a non-tariff trade barrier under CETA? Do you know how the authorities work and which document would take precedence in the event of a conflict?
Giovanni Buttarelli - 12:35
Okay, and that includes not just inside Europe but outside Europe as well.
Giovanni Buttarelli - 12:36
My final question in the time we have is, what do you see as the instrument? Would signing on to the GDPR in a similar legislative framework, then, be a condition of trade agreements with Europe going forward? What's the mechanism for enforcing that over time?
Giovanni Buttarelli - 12:37
Nathaniel Erskine-Smith - 13:11
I am just seeking information about the GDPR with regard to algorithmic decision-making and the extent to which, if at all, the GDPR speaks about transparency in cases where decision-making processes are handed off to algorithms. Does the GDPR contain or foresee any rights for people to have a sense of how those algorithms work and how those decisions are made once it goes inside the black box, so to speak?
Giovanni Buttarelli - 13:12
Blaine Calkins - 13:14
Blaine Calkins - 16:31
Thank you very much.
I'm sure committee members missed your humour in the chair, Mr. Chair.
Blaine Calkins - 16:31
You had mentioned earlier that a policy change took place with respect to which institutions are named, and how that's done. Who makes that policy? Is it FINTRAC itself that determines that policy?
Gérald Cossette - 16:31
Okay, so it's you who decides on the policy of whom to name.
I certainly agree that discretion is sometimes warranted and can be the best policy in certain circumstances. Do you feel, though, that when it's done on a case-by-case basis in the way that it's being done, it can contribute to undermining public confidence in the process if the decisions are seen as being arbitrary, or if certain types of institutions are not being named whereas other types of institutions are?
Gérald Cossette - 16:32
Okay, so you don't feel that the kind of non-disclosure agreement you had with Manulife impedes your ability to clearly communicate how decisions are being made and the reasons why?
Gérald Cossette - 16:32
Are you concerned that your reasoning in this case might lead to scenarios in which organizations that are well funded and have the legal means to threaten a long, protracted legal battle will secure a kind of preferential treatment in that, because they're the ones in a position to make that threat, they would be less likely to be named, and that's a consequence of the amount of resources they have instead of other considerations? So players who don't have those same legal resources and financial resources are going to get named because they're not able to threaten delay, whereas larger institutions like large banks who do have that capacity are going to be in a position to protect themselves from being named through threat of lengthy court action.
Gérald Cossette - 16:34
All right. Fair enough. So you don't think—and I'm not speaking to any particular organization's access to the legal system—that access to the legal system, if that's the rationale for your decision, is a consideration in the kind of legal action that could be undertaken?
In the case of smaller clients who don't have those resources.... Do you treat the potential of legal action the same for any organization regardless of their resources? Are you blind to the legal and financial resources of institutions when you make a decision based on the potential for legal delay?
Gérald Cossette - 16:35
I can appreciate a kind of blindness to access to legal resources as part of a procedural argument, but if the argument behind the policy is that you need to decide these things on a case-by-case basis in order to be able to exercise discretion, doesn't discretion usually tend toward the idea that we want to be able to take into consideration all of the various factors at play?
If you're arguing for discretion on the one hand, why would you then say that you want to be blind to certain aspects of the situation that you're being asked to judge on a case-by-case basis?
Gérald Cossette - 16:36
Your colleague did mention the fact that the appeal at Federal Court, if I'm correct, was one of the preponderant factors that brought you to negotiate with Manulife in order to reach that agreement.
If Manulife hadn't yet made the appeal to Federal Court or never made the appeal to Federal Court, if you're blind in the way you suggest you are, would your decision not have been the same in the end because there was the possibility of going to court, or did the fact that Manulife in fact went to court bear on your decision?
Gérald Cossette - 16:37
I guess I'm trying to understand for future cases, if it's irrelevant whether companies or institutions in fact mount a legal challenge because you're blind to their ability and resources in that regard. I guess what I'm asking is this. I think that that intention, with the claim that the fact that an appeal had been made, was one of the reasons you decided to negotiate. The fact of their being able to mount a challenge, I think by your account, and this kind of blindness to the extent of their legal resources, would mean that you would have made the decision regardless of whether they had gone to court or not.
Gérald Cossette - 16:38