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House of Commons Emblem

Standing Committee on Access to Information, Privacy and Ethics


NUMBER 143 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, April 9, 2019

[Recorded by Electronic Apparatus]

  (1530)  

[English]

    This is meeting number 143 of the Standing Committee on Access to Information, Privacy and Ethics. Pursuant to Standing Order 108(3)(h)(vii), we continue with the study of privacy of digital government services.
    Today we have with us Brian Kelcey, vice-president of the Toronto Region Board of Trade.
    First of all, as most of the committee knows, there have been two motions brought before us. We'll start with Mr. Kent.
    Go ahead.
    Thank you, Chair.
    Colleagues, you'll recall that a couple of weeks ago, when I first brought a motion suggesting that we provide a safe and civil venue for witnesses to appear to discuss some of the unknowns—and, so far, unquotables—with regard to the SNC-Lavalin corruption scandal, the Liberal vice-chair, Mr. Erskine-Smith, made it very clear that, as he said, he's voiced and voted for a more public inquiry to get at the truth. He said, “I think everyone on this side [the Liberal side] cares at getting to the truth. It's just a question of how we can best do that.”
    We accepted, with some disappointment, Mr. Erskine-Smith's characterization of the motion as “premature”, but he did make the point that we should wait for the justice committee to make a decision on whether to reopen their study or not, and they didn't. He said that he would be pleased “to, if necessary, revisit this conversation.” Mr. Erskine-Smith said that, given that the waiver had been provided to the justice committee, it was appropriate to hear more about this.
    I'm hoping today that those on the Liberal side of this table will consider this motion, which I'll read into the record:
That, given the new information on the matter of political interference in a criminal prosecution by the Office of the Prime Minister disclosed in documents tabled by Jody Wilson-Raybould and Gerald Butts, the Committee:
a. Instruct the Chair to write a letter to the Prime Minister requesting that he waive all constraints that may prevent individuals invited to appear before the Committee from speaking freely;
b. Invite Justin Trudeau to appear prior to April 12
c. Invite Jody Wilson-Raybould to appear prior to April 12
d. Invite Jane Philpott to appear prior to April 12
e. Invite Katie Telford to appear prior to April 12
f. Invite Elder Marques to appear prior to April 12
g. Invite Mathieu Bouchard to appear prior to April 12
h. Invite Amy Archer to appear prior to April 12
i. Invite Ben Chin to appear prior to April 12
j. Invite Justin To to appear prior to April 12
k. Invite Jessica Prince to appear prior to April 12
l. Sit extra hours in order to conduct these additional meetings.

[Translation]

    Mr. Gourde, could you repeat that in French, please?

  (1535)  

    It is my pleasure to repeat my colleague's notice of motion, which I am happy to support, in French.
That, given the new information on the matter of political interference in a criminal prosecution by the Office of the Prime Minister disclosed in documents tabled by Jody Wilson-Raybould and Gerald Butts, the Committee:
a. Instruct the Chair to write a letter to the Prime Minister requesting that he waive all constraints that may prevent individuals invited to appear before the Committee from speaking freely;

b. Invite Justin Trudeau to appear prior to April 12;
c. Invite Jody Wilson-Raybould to appear prior to April 12;
d. Invite Jane Philpott to appear prior to April 12;
e. Invite Katie Telford to appear prior to April 12;
f. Invite Elder Marques to appear prior to April 12;
g. Invite Mathieu Bouchard to appear prior to April 12;
h. Invite Amy Archer to appear prior to April 12;
i. Invite Ben Chin to appear prior to April 12;
j. Invite Justin To to appear prior to April 12;
k. Invite Jessica Prince to appear prior to April 12;
l. Sit extra hours in order to conduct these additional meetings
    Mr. Chair, you understand that it is always our hope that, on the opposite side, some are listening attentively. We hope that light will be shed and that we will be able to give all of these witnesses the opportunity to present their version of the facts for the benefit of all Canadians, who want to hear the truth about this truly important matter. So, the sooner this matter is resolved, the better it will be for everyone.
    I hope that my voice will be heard.

[English]

     Thank you, Mr. Gourde.
    I think we have a speakers list. We'll go first to Mr. Angus.
    Go ahead, Mr. Angus.
     I support my colleague on this issue, because getting the facts on the record as to whether or not there was an orchestrated campaign to interfere in a criminal prosecution is the issue that's right now dominating our country. It's making it impossible for my colleagues in the Liberal government to move forward, because we have not gotten clarity on this. This is a political crisis that is unprecedented. I've never seen anything like this. We've lost the Clerk of the Privy Council. We've lost the chief of staff to the Prime Minister. We've lost two of the most respected women cabinet members—the president of the Treasury Board and the former attorney general—as well as the former parliamentary secretary to the Prime Minister. This is an issue that's not going away.
    I particularly note my colleague Mr. Erskine-Smith's comments in the Toronto Star, which I read, but also at the last committee, that he felt this was being handled by the justice committee. Well, the justice committee shut this down and did not allow further testimony. The only two key people from the Prime Minister's Office who testified both had to quit their jobs in disgrace. There are unanswered questions. There are questions about who in the office overstepped their ethical obligations. I also note that my colleague Mr. Erskine-Smith said that if there was new evidence to come forward, then it definitely would be within the purview of the ethics committee. Well, I certainly would suggest that after hearing the information brought forward by Ms. Wilson-Raybould, everything she said at the justice committee has been verified by her facts, and none of those facts have been contradicted by any other evidence.
    I also note that Mr. Butts' counter-evidence does not create a pattern or an image that these people were at personal loggerheads, that there was this conflict, that she was impossible to work with. I found that there was a great deal of respect, because she felt that she was working for the Prime Minister's interests. Her conversations in the text messages that Mr. Butts provided were very respectful. It was about whether or not there was interference in the rule of law. That's what we need to stay focused on, not a larger soap opera of he-said-she-said. Was there interference in the rule of law? This is a fundamental question that has to be above party lines here.
    I make that note as I received a letter this morning from Mr. Drago Kos of the OECD anti-bribery unit, who wrote to me to confirm that they are paying very close attention. They are paying very close attention because the government said that there would be a robust investigation at the justice committee, and then it was shut down. Mr. Kos has stated that the OECD would welcome any more information to be handed...because they are monitoring whether or not Canada has breached its international obligations. If Canada breaches its international obligations in a matter as serious as an international corruption trial, it will certainly put us on the list of outliers.
    It's well within the purview of the ethics committee, because we have obligations to oversee the Conflict of Interest Act and we have obligations in terms of the obligations of public office holders that we have to deal with. There are issues of the pressure and the lobbying that went on, into the Prime Minister's Office, that put key people in the Prime Minister's Office in, I think, very compromised positions. This is something that is within the purview of the ethics committee. I think we need to move on it.
    I think it's very unhelpful to have the mano-a-mano back and forth between the Prime Minister and the head of the opposition as to who's going to sue whom and who's more willing to stand up to the other guy. That is not helpful. I think the simplest thing—I don't care how long we sit—is to get the hearings done. Let's get a report. Let's restore it to the Canadian people so that we as a nation can decide, if there was a problem, whether there will be accountability. If there wasn't a problem, then we can move on.

  (1540)  

    Thank you, Mr. Angus.
    Next up is Mr. Erskine-Smith.
     First, I've never been quoted with such approval by Mr. Kent and Mr. Angus. I encourage them not to stop in the future, although I do disagree with some comments Mr. Kent made earlier referring to those of us on this side as minions. I have voted my conscience once or twice.
    I would also note that I expressed skepticism a couple of weeks ago with respect to the ability of a committee like this to function as an investigatory body and pointed to commissioners and their roles as more up to that task. I did say a couple of weeks ago that the motion then was premature, and I did so on the basis that I didn't want to predetermine what new evidence Ms. Wilson-Raybould was to put forward. I am still of the view that had that evidence been new, had there been new allegations made that required another look, it would have been open to our committee to undertake that.
    That's not what happened. Instead, there was a 43-page submission on the heels of three and a half hours of testimony, and at the end of that 43-page submission, Ms. Wilson-Raybould wrote, “As such, for my part, I do not believe I have anything further to offer a formal process regarding this specific matter”.
    I would also note that on April 4, in the most recent Maclean's interview, Ms. Philpott noted, “I think there's enough information out there now for Canadians to judge what took place.”
    You have the two principal individuals who raised these concerns in the first place saying that we've heard all we need to hear, and certainly Ms. Wilson-Raybould in particular has said that she has submitted everything that needs to be submitted. For us to then undertake and renew this process doesn't strike me as an effective use of our time. With the Ethics Commissioner attending before us, or at least his office attending before us for the estimates, we should still be putting questions to the Ethics Commissioner as to whether that office has the tools, resources and mandate to do this job effectively.
    Mr. Angus, obviously, noted the Conflict of Interest Act, and it is our purview, but typically we don't undertake these investigations ourselves as a committee. We ensure that the commissioner is doing the job he needs to do and that the commissioner reports to this committee directly on those investigations.
    Thank you, Mr. Erskine-Smith.
    Next up we have Mr. Kent, and then Mr. Angus.
    Thank you, Chair.
    First of all, just a point of clarification, my reference to minions was quite clearly describing those in the Prime Minister's office who we know have exerted pressure in the justice committee, and we observed their considerable agitation and toing and froing whenever the committee seems to be going into areas where they think they might be concerned.
    Apology accepted.
    It was not an apology. Your Liberal House leader accused the Conservative members of being minions, and that's what the Speaker was upset about. I would suggest that someone convey to the House leader to check with the dictionary on the very honourable definition of what a minion is: a loyal, unswerving member of a staff who will do anything to protect their master.

  (1545)  

    No one has ever accused me of that, by the way.
    No, and I don't suggest that any member of this House should be described as a minion.
    With regard to Mr. Erskine-Smith's response, we haven't heard from the one person in this entire continuing and, as I said today, ever-deepening scandal, and that is the Prime Minister himself. He has made the threat. My colleague is a lawyer, and I think he recognizes a SLAPP lawsuit as well as anybody else. It would attempt to shut down any criticism of any sort.
    We also haven't heard from those other names besides Ms. Wilson-Raybould and Ms. Philpott who have been implicated in wrongdoing and who haven't had a chance to speak to the truth or the accuracy of the testimony that we've heard from the clerk, from the former principal secretary and from Ms. Wilson-Raybould. I was a little surprised to see her remarks that everything has been said that needs to be said for Canadians to make a judgment in this matter. I think there are still huge questions beyond that unprecedented waiver window, which the Prime Minister has referred to any number of times, and the period after, which led to her resignation from cabinet. Ms. Philpott, of course, had remarks with regard to the toing and froing inside that window, and no one has ever heard testimony from Ms. Philpott about those events.
    I would suggest that there is ample cause, ample reason, to invite the Prime Minister, first, to remove all constraints on any of the potential witnesses listed, but also to continue to look for the truth in this matter. I think there is still grave uncertainty in any number of areas and issues under the shadow that was cast by the very detailed and very credible evidence originally given by Ms. Wilson-Raybould in the justice committee before their premature shutdown.
     Thank you, Mr. Kent.
    Mr. Angus.
    Thank you.
    Just to follow up with my colleague Mr. Erskine-Smith, whom I've never referred to as a minion.... I may have referred to some members of the justice committee as the PMO's House puppets, but I don't have such a good relationship with them as I have with my colleagues here, whom I have enormous respect for. So, we will maintain that respect. I can't remember if I made that comment or not, but it wasn't about my colleagues here.
    There are a couple of issues here. One is that I wrote the letter to the Ethics Commissioner, asking him to investigate under section 7. The Ethics Commissioner has very few tools to deal with something of this nature, and we have to be very clear about what powers the Ethics Commissioner has. We asked on the question of preferential treatment; that seemed to be an accurate reading. He came back and said that, no, he felt it was section 9. Now, section 9 is on financial interest, which has always been ruled as personal financial interest. Nobody is suggesting that the Prime Minister has shares in SNC-Lavalin. That's ridiculous.
    The decision by the Ethics Commissioner to go to section 9, to me, has raised a number of questions about the study, because he cannot deal with the issue that really matters to us, which is whether or not there was political interference in a prosecution. That's something he can't do.
    Second, he is off ill, and the Ethics Commissioner's office cannot release a report while he's off. Now we are told that the investigation is still ongoing, but that's not something.... With regard to an issue like this, if he's the one dealing with it and he's off, that's problematic.
     I just want to say that I was very surprised and thrown off to find that a cabinet minister's sister-in-law is the chief investigator for the Ethics Commissioner. Now, I totally expect and understand that this person recuses herself in this matter, but under the Conflict of Interest Act, where it defines relatives of public office holders, she fits the definition.
    I'm actually even considering formally requesting that they withdraw my request for an investigation because I don't have confidence. He cannot deal with the matter at hand.
    As to my colleague with all his many requests of who should appear, I've been here 15 years, and we have dealt with all manner of smut and corruption. We've never had a prime minister sit at a committee, so I was thinking, “Okay, well, I don't expect the Prime Minister to come for that.” As to whether Ms. Wilson-Raybould and Ms. Philpott have finished what they've had to say, that's not really the issue.
    The issue is that Ms. Wilson-Raybould in particular presented an enormous amount of evidence that we haven't gotten answers to. I don't know if we need to bring her back to get more evidence. She has laid out the evidence. You can't finish a trial or get to a conclusion unless that evidence is tested.
    A number of people are named in that, such as Ben Chin. As a public office holder, what he was doing was inappropriate, she says. Was he flying free as a bird and trying to intervene, or was he directed by the finance minister's office? That's the question that we need an answer to.
    Ms. Telford is quoted as saying that she doesn't believe in legalities. Well, she's the right hand of the Prime Minister. Anybody who's that close to the Prime Minister has to put legality and the law at the top of the list. Was she misquoted? I think she should have a right to respond, but we need to know about her role.
     There are also Mr. Marques and Mr. Bouchard.
    What was really disturbing in the evidence that Ms. Wilson-Raybould came forward with, which has never been contradicted by Mr. Wernick or Mr. Butts, is the attempt to get around the Attorney General to see if they could have, off the record...or just talk to her. They actually didn't say “off the record”, but they talked about getting around to talk to her. That would be extremely inappropriate, so I think these witnesses need to be called.
    If my colleague wants to move forward, we could pare down the list a little bit so that we're not being repetitive but we're focusing. If those questions are unanswered, we could go to a larger list. That's how we tend to do things at committee. Let's start with a few. If we can get answers, then that may.... If the Liberals are happy, we'll move on.

  (1550)  

    Is there any further discussion of the motion on the table right now?
    Mr. Erskine-Smith.
    I'll just say something very briefly. I have discovered that Mr. LeBlanc has cousins everywhere.
    East of Rivière-du-Loup....
     With respect to the Ethics Commissioner, any questions Mr. Angus might have are properly put to the Ethics Commissioner's office. If his mandate is not sufficient, we should be putting those questions to the Ethics Commissioner. I said that the last time, and it remains true.
    The only other thing I will say is that every single witness on this list could have availed themselves of the same opportunity that Mr. Butts did, which is to have requested to appear before the justice committee if they had something to say to contradict anything that Ms. Wilson-Raybould had put forward. As well, they could have submitted additional documents, just as Mr. Butts did at the very end of the study. They were accepted by that committee and published, even though they had closed oral hearings. Anyone who wanted to contradict anything Ms. Wilson-Raybould has said had every opportunity to do so.
     It does not make sense to me that the two principal people in this, who have raised these concerns, have said that they have nothing more to add—we have so much evidence that we have a 17-minute recording of the key conversation in all of this for all Canadians to hear if they are so interested—and that we, as a committee—which typically does not undertake investigations—are now to invite Amy Archer to get to the bottom of this. Frankly, if Amy Archer has something to contradict, she could have submitted it to the justice committee, just as Mr. Butts did. Otherwise, the evidence stands.
    Thank you.
    Next up we have Mr. Kent, and then Mr. Angus.
    In answer to that, Mr. Butts, of course, resigned in what I think many people saw as disgrace before he brought that testimony. I would think that even senior staffers in the Prime Minister's Office or in the finance minister's office would be very prudent in avoiding any appearance before any committee and making any public statements, given what they saw as the fate of the principal secretary and the Clerk of the Privy Council, who were two of the most senior individuals supporting the Prime Minister.
    I think that they have not been given an opportunity. An invitation would certainly give them that opportunity. As I suggested, a letter from the chair would invite the Prime Minister to remove any constraints there might be on those individuals to speak the truth here, before a civil and safe venue.

  (1555)  

    Mr. Angus.
    I just have to think that if what my honourable colleague said is clear, that if they had anything to contradict they would say it.... Katie Telford is on the record, according to the witness, saying that she wasn't interested in legalities because they were going to get this thing done. That's a serious charge to make against someone who is the Prime Minister's adviser.
     If she's not interested in contradicting it, then I guess we have to accept as true that she wasn't interested in legalities. If that's the case, she definitely needs to come before our committee, because she has obligations to uphold as a public office holder.
     I think it would be absolutely unacceptable that if Ms. Telford heard that testimony and isn't interested in contradicting it.... Then we have to assume it is true and we have to bring her to committee to ask how she can function in the Prime Minister's Office if issues of legality and interference in the rule of law are not something that's within the operating culture in that office. That, to me, is a question that now does need to be answered.
    We're back to Mr. Kent.
    I have one final comment.
    When this committee conducts studies—and we've done it with some collegiality over the past couple of years—we don't limit ourselves to testimony only from volunteers. As we saw with the Cambridge Analytica/AggregateIQ scandal, we had to invoke the powers of this parliamentary standing committee to reinvite a number of individuals who we felt had misled the committee and Canadians with regard to the truth in those matters.
    In considering whether or not to strike this study, I don't think that asking the Prime Minister to remove all constraints would be going beyond the bounds of the normal practices of this committee. It is within our power in any study. As my colleagues Mr. Angus and Monsieur Gourde have said, there are still any number of unanswered questions from the original testimony, not only of Ms. Wilson-Raybould but of the former clerk and the former principal secretary, and allegations made about some individuals whose names have been possibly somewhat besmirched. They may well have truths they would like to speak under the protection of testimony in this committee.
     That's the last speaker I have on the list.
    Is there any further discussion on the motion?
    I guess we'll go to the vote.
    I ask for a recorded vote.
    (Motion negatived: nays 6; yeas 3)
     Next up, we have the next motion.
    Mr. Angus.
    I put people on notice on April 2, on my motion:
That, pursuant to Standing Order 108(3)(h)(vi) and given the testimony provided by the former Attorney General of Canada, public office holders Katie Telford, Chief of Staff to the Prime Minister, and Ben Chin, Chief of Staff to the Minister of Finance, be invited before the Committee to answer questions related to their conduct in inappropriately pressuring the former Attorney General and members of her staff in order to secure a deferred prosecution agreement for SNC-Lavalin.
    I think this motion is important. It follows up on the work my colleague offered in the previous motion, but this is about the obligation that public office holders have to respect the rule of law. If we do not abide by that simple principle, then we are an outlier state, which is why the OECD right now is monitoring Canada.
     The roles of Katie Telford and Ben Chin have to be looked at, because the evidence.... My colleagues on the other side have clearly said they're not contradicting any of the evidence that Ms. Wilson-Raybould gave. Her evidence stands. Her evidence is that Ben Chin inappropriately approached her staff and attempted to pressure them on behalf of SNC-Lavalin to interfere with the public prosecution, and was told that this was unacceptable interference—which it is, under how our legal system is structured.
    The question we have to ask is whether Mr. Morneau was inappropriately pressuring. The evidence, which my Liberal colleagues seem to be willing to accept in Ms. Wilson-Raybould's testimony, is that she told the finance minister to back off, that this was inappropriate and that this would certainly be a violation of the law.
    The question about Ben Chin is what his obligation to his minister was. Was it to advise him on the obligations he has to meet the rule of law, to respect the rule of law, to know that he has no right to interfere with the Attorney General in attempting to interfere in this prosecution of a bribery case against SNC-Lavalin? Mr. Chin needs to be called here, not voluntarily, to say if he has anything to contradict. It's to ask him about whether he respects the code that he has been called to uphold.
    The same questions need to be applied to Ms. Katie Telford. The testimony we have received—which my colleagues on the Liberal side say is not being challenged—is that, in her pressure to Ms. Wilson-Raybould's office, she said they were not interested in legalities. That is a shocking statement to make. If the Prime Minister's chief adviser is not interested in whether they are breaking the law, then we are lawless. Was she doing that because the Prime Minister didn't care about the rule of law?
    We do not have the power at committee to bring in the Prime Minister. We had Mr. Butts come. Mr. Butts was forced to resign. Mr. Butts was forced to resign, he said, because he wanted to do a whole bunch of other things in life. But he was unable to contradict the testimony of Ms. Wilson-Raybould, where she said that Mr. Butts told her there was no way they were going to get through this without interference. Interference is interfering in the role of the public prosecutor.
    Ms. Telford has not come forward. Seemingly—if we take the argument of my colleagues on the Liberal side—there is no contesting from Ms. Telford as to whether she said that. They don't seem to be contesting that she said she wasn't interested in legalities. She, as a public office holder, has legal obligations to uphold. We, as a committee that oversees ethics and accountability in Parliament, must ask the Prime Minister's chief of staff to come and explain herself. Is there an outside chance that she was misquoted, or does the issue of the rule of law not matter in the Prime Minister's Office?

  (1600)  

    Thank you, Mr. Angus.
    Mr. Kent.
     I fully support my colleague in all he has said, and all that has been said in support of my previous motion.
    With a scaled-down motion and with fairly powerful arguments, we have no hesitation on the Conservative side in supporting the NDP motion.
    Is there any further discussion on the motion before us?
    Go ahead, Mr. Angus.
    Just give me a second. I'm on a BlackBerry and it's sometimes slow.
    I can give you some time to think. I'm just going to talk to the witness to explain everything, while you think a bit.
    Mr. Kelcey, we are still going to get to you today. We have time. I appreciate your patience. We have committee business as well, but I think we have time for everything. We had one witness who said they weren't able to make it today, so that's fine. We tried to reschedule, but that person isn't available Thursday either, and we'll get into that a bit later. Just to let you know, rest assured, we are still going to hear from you today.
    Mr. Angus, are you ready?
    Yes, I was going to read a quote from Ms. Philpott, but I was unable to bring it up.
    I've seen many scandals in my 15 years. I've seen people doing dumb things. I've seen people getting caught for taking money. I've seen people, mostly men—almost all men—doing dumb things sexually that they shouldn't have done. I've never, ever, seen two people resign from the highest positions that you can imagine in the country because of an issue of integrity.
    I was very struck by former minister Philpott, who had no need to give up her career for this, and who carries enormous weight in the communities I represent, I must say, for the work she did on Treaty 9. She said there are things that are bigger than your political career. It's about ethics, she said. It's about the Constitution; it's about integrity. After this scandal is all said and done, people will remember those statements and say that it is possible, within the Canadian parliamentary system, to do things with integrity, but sometimes it has a cost.
    In the case of Ms. Wilson-Raybould, she clearly did not have animosity with the Prime Minister's Office. She respected them, but she was willing to give that up. In the case of Ms. Philpott, she gave up the position of president of the Treasury Board, which is an extremely high honour, in order to say that it is about a larger principle, the rule of law.
    I appeal to my colleagues that this is about integrity, and it's hard. It's hard when it's your party that's in the vise grip and you are extremely loyal. Your party gets you elected. Your number one obligation is to the party that got you elected, but what you carry from that point on is your integrity. I've seen people give up their integrity because they think they're being loyal to their party, but at the end of the day what you carry through Parliament and through your career is that integrity. That's what you trade on, and that's what gets you out of trouble if you make mistakes.
     I would appeal to my colleagues, based on the very clear call of Ms. Philpott, that we do this and we do it right.

  (1605)  

    Thank you again, Mr. Angus.
    Is there any further discussion on the motion before us?
    We will go to a vote.
    I would like a recorded vote.
    We'll have a recorded vote, Mr. Angus.
    (Motion negatived: nays 6; yeas 3)
    The Chair: Thank you, everybody.
    We'll get on with our witness today. I'll just explain a bit of the plan. We have only one witness, and we still have committee business at the end. It should take us until about five o'clock to get everything done, as we have only one witness.
    Go ahead, Mr. Kelcey, for 10 minutes.
    Thanks for the explanation earlier. To use Mr. Kent's language, I am an ex-minion of provincial and municipal experience, and so I fully understand what's happening before me here, and maybe even expect it a little, so no trouble.
    Chair and members of the committee, as the Toronto Region Board of Trade's vice-president of public affairs, I'm here on behalf of the board's 13,000 members. The board of trade is now actively engaged in the debate that you're engaged in about Waterfront Toronto's Quayside project and its agreement with Sidewalk Labs.
    Our overall view—and I want to stress that word—is that we are happy that Sidewalk Labs is in Toronto.
    We believe that investments by large foreign technology firms can play an important and constructive role in building our growing technology economy, even if the scale-up of our outstanding domestic technology sector remains a priority alongside that growth.
    We believe that the process agreed to by Waterfront Toronto and Sidewalk Labs should proceed, and that any final outcome should be based on the merits or demerits of whatever Sidewalk Labs presents in its development plan, as originally intended by the process.
    We believe that tearing up this process in mid-stream poses reputational risks, trade risks and legal risks. There is no cause to take those risks, since there are literally dozens of steps of approvals ahead of Sidewalk Labs on this site, leaving plenty of room to negotiate for, or act on behalf of, the public interest as this process develops.
    That said, the board was not vocal with those arguments for the first several months of this controversy because our policy team wanted to address an important public policy issue first. In our minds, there is a big, awkward gap in the regulation of what we call public realm data capture. Sidewalk Labs has made it clear that public realm data capture services would be part of the business that it hopes to deliver at Quayside.
    As a business organization, we believe that this regulatory gap must be filled for everyone's sake. That's why we released a short report called “BiblioTech” in early January of this year.
    Our key recommendations were simple.
    We argued that data regulation related to the Quayside project should be handled by a third party organization, not the project's proponents or participants.
    We argued that, generally, any public realm data collected in the city of Toronto should, by law and regulation, be held by a public data hub or a public data host or trust.
    We argued that a good potential host for that hub would be the Toronto Public Library, chartered as it is by provincial legislation, and that the library, as an important civic institution, should be empowered to develop recommendations on regulations to govern that hub. Naturally, the Toronto Public Library would be expected to engage other governments, advisers and stakeholders to reach those recommendations. We didn't expect that they'd be acting alone.
    Enforcement of those rules should fall within the purview of the Information and Privacy Commissioner of Ontario. We recommended toughening those rules as appropriate, and that the IPC should have authority to investigate breaches of rules of that data hub if needed.
    Finally, we argued that the Toronto Public Library should model any effort to capture intellectual property value from this data on the approaches used at university and post-secondary tech transfer offices. Revenue should be used to make the hub self-sustaining, even if commercialization of data was limited, as the library suggests it would be under their model if they were to take over as we recommended.
    I'm happy to discuss any of our recommendations in “BiblioTech”, and the reasoning behind them, at greater length.
    Suppose Sidewalk Labs actually manages to race through the MIDP approval, negotiate IP concessions with Waterfront Toronto, win desired building code changes for their tall timber construction plans, and run the uncertain gauntlet of development approvals at city hall.
    Even if they walk on water, the data regulation issue we called out in January is still waiting on the other side, unless we—and by “we” I mean all of us in the larger political community—act to resolve it. If we don't, we'll wish we had soon enough, because the board has seen other examples in government and in business where agencies, actors and firms are already colliding with the same legal issues on projects of their own in situations that have nothing to do with Quayside. This issue needs to be resolved, whether Quayside carries on or disappears for some unforeseen reason in the future.
     What's politically remarkable to us, and one reason why we drafted this report in the first place, is that there's actually a consensus of sorts here. Both Sidewalk Labs and its most vocal critics agree that public realm data should be regulated by governments or agencies if Sidewalk is going to commercialize public realm data from sensors at Quayside.

  (1610)  

     Both Sidewalk Labs and its strongest critics agree that public realm data, once collected, should be held independently by an external authority, be that the government, a trust or some suitable agency. They agreed on that when we called them both to see where their heads were at in November. They agree on that today, and we agree with both sides on that question.
    To close, I'll note that data policy is a point of personal and historical interest to me. As a former Queen's Park political adviser—or a minion, if that's the language in the House—
    Voices: Oh, oh!
    Mr. Brian Kelcey: In 2001 and 2002, I worked with a great team and a great minister—Norm Sterling, for those of you who remember him—to develop a made-in-Ontario privacy regime. Those rules were meant to protect the public but also to provide a competitive and predictable environment to attract technology firms to Ontario. The draft legislation was ultimately abandoned internally months after I had left the department. I'm happy to elaborate if anyone cares.
    Parliament enacted the Personal Information Protection and Electronic Documents Act nearly 20 years ago. That act is what triggered Ontario's initiative to in turn try to develop made-in-Ontario legislation that would be more applicable to Ontario's local and provincial circumstances. Here we are again, facing an incrementally different world with a new regulatory challenge in the form of anonymized and public realm data issues.
    We know that on the initiative of councillors Joe Cressy and Paul Ainslie, Toronto City Council has launched an effort to develop its own data policy. Ontario is consulting on a data strategy as we speak, but ultimately the authority that created a broad framework to address these issues in the earliest days of the Internet was right here on Parliament Hill.
    A national approach may be appropriate now—whether it's to empower libraries, empower municipalities or just set a common framework for the country to work with—if it leaves room for innovation, if it's balanced and if it guides local governments and provincial governments without freezing out local preferences, as the original federal legislation did.
    I hope that, in any questions, I'll have the opportunity to speak to other issues on the Quayside debate. It's a complex one, but I'm sure the primary reason we were invited to join you today is that we've spoken out on the virtue of public realm data regulation and we've made it clear that the Toronto Region Board of Trade's support for this regulation can be and is a pro-business and a pro-Quayside position, just as much as it is a pro-public interest and pro-individual position in terms of protecting the rights of our customers, our citizens and our taxpayers ad infinitum.
    Thank you, Mr. Kelcey, and thank you especially for making us smile a little bit. Sometimes work gets pretty serious here.
    For sure.
    Thanks for the humour; we appreciate it.
    I'll go first of all to Mr. Erskine-Smith for seven minutes.
    Thanks very much.
    This is in the context of a broader study on digital government and protecting privacy. Maybe you can be a little more specific about some of these key principles of data management and management of personal information that is to be collected through new sensors and new automation, potentially. When you talk about public realm data regulation, are there key principles you are looking at that you would suggest this committee recommend with respect to data management?

  (1615)  

    I'm going to give you an answer that I want to say at the outset is not exhaustive, for all the obvious reasons, but a couple of things came to mind. The “BiblioTech” report was probably one of the most entertaining things the board's policy team has done. We deliberately collected everybody on our team, which at that point was, I believe, seven people, and locked them in a room for a couple of weeks, day after day, and said, “Let's think some of this through.”
    One thing that's changed relative to the privacy work I was doing and the Ontario government was doing in 2001 and 2002 is, of course, that the premise of most privacy legislation around the world and data regulation is based on personal consent. A company can use this data to do whatever it does, as long as it's specific about what it's going to do with that data and as long as they obtain your consent.
    Candidly, I think the rules around what is and isn't consent have evolved considerably, to a point where the market is very happy and very lax to say yes to a lot of requests for consent relative to what we expected in the early 2000s. Nevertheless, the principle of consent is still there if you're downloading an app that asks you if it can use your data, and you still have a choice to say no.
    The problem with public realm data is twofold, which I think is particularly interesting for you as parliamentarians. First, it's public. You can try, but there's no reasonable way to get inferred consent, which was a big doctrinal discussion in 2001. Inferred consent is difficult to get unless you plaster a particular region with signage and so forth.
    Two of the examples I usually give on this are city of Toronto cases, where there would be a public benefit to collecting the data that most voters would probably say yes to, but they're not really acting on what their sensors are picking up in terms of traffic cameras along the King Street pilot, on the one hand, and traffic cameras they're using to study traffic that could also be used to study accident sites and so forth, on the other, because they don't know what the rules are and—
     That's an interesting point. Sorry to cut you off, but you mentioned that Toronto City Council is looking at new data policies. I'm curious about this idea, because they already engaged in this practice to some extent with open data, and they have standards. For example, when I look at the Red Rocket app on my phone when I'm waiting for the bus, I know the bus is a certain amount of time away. That's a private party that has developed that app, but it's based on open data from the city of Toronto. This isn't necessarily a new conversation.
    No, it's quite the contrary. Part of what I'm encouraged by, in terms of how fixable it is, is that it's not new. There are a lot of jurisdictions that are already operating on this, and you have just spoken about some of them in testimony that I read earlier. The challenge, just in Canada, is that we don't have a common standard of rules or even a consistent standard of rules to play by among a number of different federal jurisdictions in the federation. We've kind of allowed this to roll up on a very specific subset: I have my phone and I'm walking through, and I've said yes to my phone company collecting certain amounts of data on me, but what about the interaction between that phone and the sensors, or what about sensors that are picking up my movement through a particular development site? We've spoken to other developers who want to do this with their developments because they believe it's the future and they don't know what the rules are.
    The public realm piece is the new piece. There's some good scope around how to limit that. There are a lot of complications where I think the tough work on this will be. We want to allow a lot of that data to be open. When we spoke to the library, they said they wanted to allow a lot of that data to be open because it's public. You're capturing it from the public realm.
    As long as it's not identifiable to an individual....
     Right, and that's the key, to lay down some crystal-clear rules around how to remove those identifiers, and do so in a way that anticipates the worst possible results in those scenarios. I think part of the reason this crept up on us is that Canadian federalism has its great points and it has some weak points. A weak point here is that this is a very local problem, which is one reason why we propose that the library deal with it. We're dealing with street corners here. We're not dealing with banks and federal industries—
    Am I right, then, to say that we recommend a significant overhaul of the Privacy Act for government collection of information at the federal level, but also a significant overhaul of PIPEDA? If there were that significant overhaul, we would be seeing cities' data policies that would have to comply with our federal rules, or provincial rules if they were substantially similar. You'd have your public data, whether it's the library or some other civic data trust that would make decisions about what to approve, but cognizant of the federal and/or provincial rules that govern. Is that right?

  (1620)  

    The original structure of how the federal legislation was implemented in the early 2000s was actually a very good case of Canadian federalism, in that it set broad standards and all jurisdictions had to comply with those standards, especially with respect to federal interests. Below that, there was the option at the provincial level, and it would be just as easy to provide that option at the municipal level, provided that local and—
    Is it easy, though? That's sort of what I'm driving at. We have a federal system, for good reason, and it mainly works, although sometimes there are frustrations with different rules. Businesses certainly face frustrations with different rules across provinces. We can see that with interprovincial trade.
    If you have significantly different data policies between Vancouver and Montreal, Toronto, Edmonton, Calgary, Halifax, is that not a potential problem?
    I think it depends on what the significant differences are. A jurisdiction might be more inclined to do more in terms of commercializing its data, provided it was consistent with protecting the rights that the federal legislation would protect. An urban jurisdiction that had more to do with that data might be willing to be more aggressive about how much of it it captures and processes if it's for its own or public uses, relative to a smaller jurisdiction that didn't have that capacity. So it depends.
    Here's my last question, as I'm running out of time. The idea is that cities would be able to make those determinations, but within the context and following the federal and/or provincial rules. Is that right?
    We hope they would. I retreated from partisan politics by being a cities guy for the rest of my career. Around the world, cities are leading a lot of the innovation in a lot of these close-to-ground technology areas. My hope—our hope, the board's hope—is that there will be enough room in whatever federal legislation, new standards or even guidelines might be created to say, here are the broad ground rules but there's some room for local governments, in the spirit of federalism, to make their own decisions about what's within their value set in that purview.
     Thanks.
    Thank you, Mr. Erskine-Smith.
    Next up is Mr. Kent, for seven minutes.
    Thank you, Chair.
    Thank you, Mr. Kelcey, for appearing. My apologies for the coincidental conflict with committee business.
    A lot of the concern, the opposition and the driving force behind the calls now for the cancellation of this project have been based on this sort of dance of seven veils that Sidewalk Toronto has been performing. There's a lot of secret information and conflict with regard to getting people on the strategic advisory board to sign oaths of confidentiality, even on some of the most basic discussions of privacy by design, for example...Ann Cavoukian.
    I know the board of trade has been very supportive of Waterfront Toronto over the years and encourages the responsible development of a magnificent piece of property in downtown Toronto. Was the board of trade not concerned as this entire controversy began to unravel, when the Toronto Star got that leaked information that seemed to suggest that this has been a real estate deal all along, rather than the simple 12-acre Quayside project based on what most of us thought was a magnificent proposal?
    I'll try to answer several strands of that as bluntly as possible, and we can follow whatever other strands you want. Part of why I may be more comfortable with this personally, and why the board is, is that this is very much a development proposal. It's an innovation proposal. It's a services-to-development proposal.
    On one level, it's very complicated, in that there are a lot of different features that firms can plug in, and the bidders were, after all, asked by Waterfront Toronto to do that, to try to use the addition of civil engineering innovations, IT innovations and other services to make this development more interesting and more compliant with the goals in terms of environmental friendliness, affordable housing, construction and so forth.
    I think that's part of what's driving that. We've said we're supporting Sidewalk going through the process, but we've also said that support isn't unconditional. We can speak later to other details of the process that got us here, but we have a legal agreement that came through a competitive RFP, and nobody has yet presented specific grounds to say—

  (1625)  

    The Auditor General challenged it.
    I'm familiar with that. I've read the report twice, and we'll get to that. But nobody yet has specifically said that there's cause to overturn the legal agreement these two parties have, and as I noted in my preliminary remarks, as a civic government expert I see that there are literally dozens of points of gatekeeping between here and what Sidewalk wants to get to do.
    We have concerns. The data piece is the number one concern right off the bat. We made some public comments. I spoke to reporters after the release of what we'll call “the leak” for shorthand. I said that I don't think, from the standpoint of how civic government works in the city, that this model is going to work, but there may be others worth exploring, and we're taking the approach that Sidewalk is legally obliged and has won the legal right to file a master innovation and development plan. Let's judge on the basis of that plan.
    The seven veils routine may be teasing for some and excruciating for others, but for large developments in many cities across this country, having multiple proposals that go through changes to try to deal with public opinion and anticipate regulatory issues is pretty standard, candidly, and it often takes years for a proposal of this size to actually work through the process.
    When a company's fourth-quarter profits were $40 billion last year, and the City of Toronto's operating budget for 2019 is less than $14 billion Canadian this year, one can see the reason for concern, and it's heightened by the fact that Sidewalk Toronto's sibling has taken a huge series of reputational and legal hits in the last few years because of business practices that have been found to be unacceptable, most recently in Europe.
     With respect to concern, I'll put it this way. I want to say, at every opportunity that I can get a chance to, that many of Sidewalk's harshest critics are not close friends of mine, but I admire them. I've worked with them. I've had more than one consecutive drink with them on occasion. I respect and understand why they're in the debate.
     I disagree with a lot of their rhetoric. I disagree with the scale of their rhetoric. I believe there's a lot of room in this process to manage some of the concerns this committee has spoken about in previous meetings. I think that's the biggest difference. There's a lot of room for a positive win, from the board's perspective, for our economy and for our city from Sidewalk's presence.
     There are also legitimate public policy views and, as we've already done on the data piece, we're quite happy to say that if we think there is.... There's room to speak out on those things, and there's lots of process left for us to have Sidewalk jump through legitimate public policy hoops if they have to, or to have all the various actors who are involved negotiate through Sidewalk Labs to get the best result for the city and for the country.
    It's understood that there's a lot to watch on this. That's a challenge, but it's also a by-product of the complexity, not just of what Sidewalk is proposing, but of what Waterfront has asked bidders to do on a complex site that's owned by many parties.
    You have 30 seconds.
    I have just one last question. Has the board of trade called for discussions with individual members of council or members of the government from Queen's Park, or with Ms. Cavoukian or Mr. Balsillie, for example, for the differing and sort of conflicting points of view?
    By way of example, Jan De Silva, the board's president, and I had an extensive conversation with Julie Di Lorenzo, who was the other witness scheduled to be here, to hear her concerns. We spoke to at least one other individual close to...a board member who had been concerned about those things. We've made an active effort to try to seek out the opposition on this. We haven't spoken to Mr. Balsillie yet, but I've spoken to a few representatives of CCI, which he's very active in.
    One thing I want to flag as well, as a veteran of two governments, is that it's a legitimate question to ask whether we, as Canadians, are giving Canadian firms a competitive shot in RFPs. Are we doing what people used to do with Big Blue in the 1970s, where you just always go with the safest party, and the safest party happens to be a large American firm in these cases?
    I think there's a difference between asking those questions—and we've certainly talked to city hall in the last few weeks to ask those questions internally—and talking about preferential treatment for Canadian firms, which raises trade risks, or chucking out a firm in the middle of an agreement just because it isn't Canadian, which is the stated objective of some of Sidewalk's most vocal critics. We're saying, look, we can both grow here, and let's watch the margins to make sure that mistakes aren't made.

  (1630)  

    Thank you, Mr. Kent.
    Last up is Mr. Angus for seven minutes.
    Thank you, Mr. Chair.
    Thank you for this. I might be a boy from northern Ontario, but I spent many years in Toronto. I'm not all that focused on the privacy issue. I think this is probably the most valuable real estate in North America. Would that be an exaggeration?
    It's the most valuable real estate that's all in one place that hasn't really been touched by external development.
    I remember when Liberty Village was a whole bunch of broken-down old factories that punk bands like mine used to practice in, and now it's so hoity-toity. We thought we were at the end of the world when we used to have to go there or to Gooderham and Worts. That was considered the end of civilization, and now it is extremely valuable.
    Very few cities have that kind of real estate that hasn't been developed and is in the exact ideal location. When I'm looking at this project, I'm thinking that Waterfront Toronto is looking at a number of potential operations that could really vitalize the city, the way the revitalization of the docklands in New York and Brooklyn did. The question is, was it for 12 acres or was it for the whole enchilada? That, to me, is a pretty straightforward question. We asked Dan Doctoroff, and he said that it's in the RFP, that it was always for the whole thing, that's what Waterfront Toronto.... But I read the RFP and it said that it was for 12 acres.
    What was it? Was it 12 acres or was it for the whole thing?
    Certainly, Waterfront has tried to answer this question from Waterfront's perspective. We're both outsiders on this.
    The way I have always understood the distinction is that what's unique about the Quayside parcel, as members will know, is that it's the piece Waterfront owns, over which it can actually have some control; it doesn't have to talk to its constituent shareholders before it sells. I understand a lot of the public concern that the land was going to be given away.
    Before, there was a lot more clarity about that in the planned development agreement, but the planned development agreement says, first—and it's important to say this—that if a deal is executed between the two parties on the basis of Waterfront and all the other parties involved saying yes to the MIDP, Sidewalk will have to pay fair market value for that land, and that valuation can include the uplift that is already generated by approval. That is a common problem in municipal sales. They will give away the land and then rezone it, and that's where you get the value pop.
    With respect to the rest, our understanding was always that the linkage between the two was such that whatever innovations and services Sidewalk—or whoever the winning bidder might have been—brought to the Quayside site should also be exportable to other sites in the area. As you know, that land is balkanized. Even if Sidewalk wants to access that land, there are layers more of process in terms of getting approval from the three levels of government that own those parcels. The same city development hell that they have to go through for Quayside they now have to go through for each of those individual sites, before they can even access them.
    It certainly gives you a good advantage if you have that. When they said it was always for the whole thing.... I mean, I look at the RFP and it's strictly for 12 acres.
    My concern is that.... The more questions I ask, the more I expect just straight-up answers if this is a straight-up deal. Waterfront Toronto and Dan Doctoroff were both adamant that this was the second-longest RFP, but the Auditor General said it was an extremely short RFP. I look at the RFP and it looks like 36 days.
    Both Waterfront Toronto and Sidewalk Labs kept rolling their eyes about “that crazy Auditor General's report”. Where did that come from? I mean, when the Auditor General does a report, we as officials pay really close attention. Did you have concerns raised out of the Auditor General's report?

  (1635)  

    I cracked it open as soon as I could read it. I'll leave aside at the moment all the other issues they raised with Waterfront, since obviously our focus is on Quayside and you have limited time. However, I want to tell you that with respect to the Quayside bid, I've spent some time criticizing the mayor I worked for, publicly, for what I very politely called “a culture of dealmaking” at Winnipeg City Hall. The ramifications of that are still spilling forth in the news these days. I've spent a lot of time on variations in RFPs.
    It's important, from my personal perspective and experience, to be clear that there is a significant difference between saying that an RFP could have been handled differently—in one of six or seven different ways, from the standpoint of what's best public policy—and saying that it had preferential treatment, which the audit did not say. It said that Sidewalk got more—
    The Auditor General's report said that Sidewalk received more than the others.
    It said that Sidewalk received more information than the other parties. On my way here I stopped for coffee, and it took me two minutes to pull up an example from Infrastructure Ontario, which is considered best-in-class in Canada in terms of running complex P3s. It gives individual bidders differential information on complex bids, because you want them to account for different business models. It's not considered preferential treatment.
    They do it a little differently from the way Waterfront did it, in terms of holding confidential meetings with each bidding party to let them ask those questions, so it's on the record and you know what's in and what's out. Perhaps Waterfront could do that in the future to provide a steadier process, but nowhere has anybody said that with this RFP there are legal grounds to throw it out.
    I'm not saying that. I never said that. I'm saying that when we see that the RFP is for 36 days and the Auditor General says it's extremely short, and then we're told it's the second-largest one ever and they don't know what the Auditor General was talking about, to me that raises questions.
    I'm running out of time here. Ms. Di Lorenzo is not here, but she wrote a letter to us to contradict Waterfront Toronto, because the other element is that we were told this had been very well vetted by the real estate committee. These aren't developers; these are people who want to make sure Toronto is getting the best bang for the buck, and she felt it shouldn't have been brought forward because they didn't have ample time.
    Right now I don't think any citizen should be trusting Google on anything till they prove their best interests, because of the corporate accountability problems they've been having. Given that it's a controversial project, and given that it's Google, we should be able to get really straight answers. A straight answer to whether there was a problem with the real estate review is yes or no. She felt there was undue pressure. The Auditor General talked about that.
    Do you feel that this kind of push to get this thing through dealmaking causes problems down the road for the legitimacy of this project?
    To be crystal clear, the phrase I used was with reference to city hall conducting land swaps without proper valuation of the land and RFPs that were clearly designed to put certain tangential pieces of land into the mix.
    As I said, I read the audit closely, twice. I think there are plenty of legitimate questions out there. I wasn't aware that there's still a discrepancy between the auditor's position and Waterfront's position, but I've certainly read the testimony of Waterfront that the RFP was longer. It will be impossible until all of us are dead, and then some, to improve our fee practices in this country with our different agencies.
    With respect to Ms. Di Lorenzo's concerns, and concerns about governance, we're trying to look forward. What we know is that we have supreme confidence in the new chair, Mr. Diamond. We know several of the directors around the table. If there were concerns that they weren't looking at over their shoulder before, you would have seen, as we did with that warning, that the board is taking earnest care to say that they're going to be very careful on due diligence when they get an MIDP. This is ultimately going to be the assessment of whether or not Sidewalk has access to Quayside, let alone whether it has any ability to provide services everywhere else on the site.
    Part of what's funny about this whole issue is that, with so many points of decision and gatekeeping ahead of us.... If it was a situation where Sidewalk suddenly won exclusive right to do whatever it wanted on dozens of acres and then submit a price to an appraiser, you'd be hearing different testimony from me right now. Instead, we have a series of processes where, for Sidewalk's sake, I'm actually more worried about the risk of inertia in terms of getting through city development approvals and getting through the MIDP. None of those will necessarily be easy, given what's transpired in the debate now. Since we share a couple of the critics' concerns in terms of issues like data and so forth, we're at the table watching as well as supporting. I hope that makes the process a more positive one for the critics as well as the fans.

  (1640)  

    Thank you very much.
    Mr. Kelcey, we'd like to thank you for your patience again today and for your testimony. We're going to go into some committee business, just for us, so thanks for coming down today and being with us.
    Thank you.
    We'll suspend for about three or four minutes until the witnesses leave.
    [Proceedings continue in camera]
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