I call the meeting to order.
Good morning, everyone. It's 8:45 a.m., and this is my first opportunity to chair this meeting. I want to welcome everybody here.
For the first order of business, as committee members will see, we have the four commissioners at the table. Your subcommittee met a little over a week ago to determine a path forward, and part of that path forward was to meet with the four commissioners in our first committee meeting, to hear from them and to find a work plan going forward based on recommendations from them and discussions that we're going to have today.
Before we proceed, I need to have a motion from someone at the table that we adopt the first report of the subcommittee so that we can get to our witnesses.
Mr. Long so moves.
(Motion agreed to)
The Chair: It is unanimous. That is great news.
Welcome. At the table today, the Commissioner of Lobbying, Ms. Shepherd, is here. Mr. Therrien, who is the Privacy Commissioner, is here. The Conflict of Interest and Ethics Commissioner, Ms. Dawson, is here, and we have Suzanne Legault, who I believe has asked to go last.
As a Conservative I always go from the left to the right, so we'll go from my left toward the right, and things will get more interesting, I'm sure.
Ms. Shepherd, you have up to 10 minutes. We'll move in that direction, and then we'll go to the rounds of questioning.
Good morning, Mr. Chair and members of the committee.
I am pleased to be here today to discuss the lobbying regime and what might be of interest for the committee to pursue during its mandate.
First let me congratulate you on being elected to the House and being named to serve on this committee.
Lobbying is a legitimate activity. As someone who has been involved in the making of public policy for many years, I know that exposure to a range of viewpoints is essential to effective policy making and better decision-making by governments. However, it is important that when lobbyists communicate with public office holders, it is done transparently and according to high ethical standards.
I was appointed Canada's first Commissioner of Lobbying in June 2009, for a term of seven years. As Commissioner of Lobbying, my role is to administer the Lobbying Act, which makes transparent lobbying activities, and to develop and enforce the Lobbyists' Code of Conduct, which sets out standards of behaviour for lobbyists. Together the act and the code ensure that Canadians can have confidence in the integrity of decisions taken by their government.
My mandate, as outlined in the act, is threefold: to maintain the registry of lobbyists, which contains and makes public the information disclosed by lobbyists; to develop and implement educational programs to foster public awareness of the requirements of the Lobbying Act and the Lobbyists' Code of Conduct; and, finally, to ensure compliance with the act and the code.
I am proud of my accomplishments that have enhanced transparency, clarified the expectations for lobbyists' behaviour, and demonstrated consequences of non-compliance. Let me highlight a few.
The Lobbyists' Code of Conduct has been strengthened. Processing times for registrations have been reduced from 20 days to an average of three. The search function of the registry has been improved. I have tabled 10 reports on investigation to Parliament, and referrals of alleged breaches of the Lobbying Act to the police from my office have resulted in the first conviction under the act. Charges have also been laid against three other individuals, and these cases remain before the courts.
The Lobbying Act contains a provision for a mandatory review by a parliamentary committee every five years. The last review conducted by this committee was completed in 2012. At that time I indicated to this committee that, in my view, many aspects of the act were working well. However, in my submission I made several recommendations to improve transparency of lobbying activities and provide for more effective deterrents against non-compliance.
The committee endorsed several of my recommendations in its final report, including the elimination of the “significant part of duties” registration threshold for organizations and corporations and the inclusion of powers to impose administrative monetary penalties.
The government's response supported many of the amendments recommended by the committee, but noted that further study was required on these areas. New legislation has not been introduced.
As we are now in 2016, it is almost time when another mandatory review of the legislation is required. I believe that the recommendations I made in 2012 are still valid and worthy of consideration. If enacted, they would serve to ensure transparency while providing the commissioner with the tools required to enforce the legislation more decisively. I would be happy to discuss these recommendations further and to participate in any further study.
Along with the Lobbying Act, the Lobbyists' Code of Conduct is an important tool that works to enhance public confidence in government decision-making. Following a two-year consultation process, a new Lobbyists' Code of Conduct came into force in December 2015.
The consultation process elicited 56 written stakeholder submissions, and I held 23 round tables with interested parties, such as lobbyists, public office holders, and academics.
I believe that the new code is stronger and clearer than the original code. It aligns more closely with the scope of the Lobbying Act. The act deals with the interactions between lobbyists and public office holders. Therefore, I removed all rules and references relating to the interactions between lobbyists and their clients from the code.
The new code also addresses the issue of conflict of interest in more detail. The code contains rules that help lobbyists avoid placing public office holders in a real or apparent conflict of interest, specifically when they share close relationships with public office holders, when they have engaged in political activities, and when it comes to the provision of gifts to public office holders.
When the code was published, I released guidance to help lobbyists understand how I will apply the rules relating to conflict of interest. The focus in my guidance is on lobbyists being self-reflective and asking themselves the following question: would an informed person, viewing the matter realistically and practically, and having thought the matter through, think that an action taken by a lobbyist has created a sense of obligation on the part of the public office holder, or a tension between the public office holder's private interests and the duty of the public office holder to serve the public interest?
Since the code came into force, the majority of questions from lobbyists have concerned their rules on conflict of interest.
Let me take this opportunity to state that clear conflict of interest rules for lobbyists are not about questioning the integrity of lobbyists, nor are they about about questioning the integrity of public office holders; rather, they are intended to assure Canadians that lobbying is conducted ethically and with the highest standards.
These changes reflect the increasing demand Canadians have for higher standards of public office holders, including parliamentarians and those lobbying them. I am pleased with the fact that the lobbyists are examining their actions in light of the new code and seeking advice from my office.
The Registry of Lobbyists is the primary tool for transparency of lobbying activities.
Earlier this month, I entered into an agreement with my colleague, the Privacy Commissioner, to have his office host both the Registry of Lobbyists and my website. The transfer took place successfully this past weekend. This new arrangement, with an independent agent of Parliament instead of a government department, is intended to provide me with more control over the operation and the development of the registry system. This new arrangement will make it easier to consider making priority system improvements.
Following the reductions announced in budget 2012, I deferred any significant development of the Registry of Lobbyists. This means that only maintenance and minor improvements have been made to the registry since 2013.
It is important to maintain a modern Registry of Lobbyists that keeps pace with technological development. As with any IT application, adequate investments to the registry have to be made to ensure the system remains user-friendly so that lobbyists can easily disclose their lobbying activities and Canadians can retrieve that information. Appropriate measures also have to be implemented to continually enhance data security and the long-term integrity of the system.
This government has indicated its commitment to ensuring that agents of Parliament are adequately funded. In this context, I welcome a discussion about funding levels for all my programs, including the Registry of Lobbyists.
Mr. Chair, this concludes my remarks. I welcome any questions you or the members may have.
Good morning, Mr. Chair and members of the committee.
I am delighted to appear before you today to introduce the work of my office and share with you our priorities for the coming years.
The mission of the Office of the Privacy Commissioner of Canada is to protect and promote the privacy rights of individuals. To that end, my office is responsible for overseeing compliance with the Privacy Act, which covers federal institutions, and the Personal Information Protection and Electronic Documents Act—or PIPEDA—Canada's federal, private sector privacy law.
PIPEDA does not apply in provinces that have enacted substantially similar legislation, except in relation to federal works, undertakings and businesses, or interprovincial transfers of personal information.
We have a strong collaborative relationship with provincial privacy commissioners. My office protects privacy rights by, for example, investigating complaints, conducting audits and pursuing court action. Our goal, within the limits of our ombudsman role, namely to make recommendations and not binding orders, is to ensure that departments and organizations comply with their legal obligations and that the rights of individuals in relations to the collection, use and disclosure of their personal information are respected.
We also promote privacy rights by, for example, publishing our own research and funding independent research into privacy issues, engaging in public education and stakeholder outreach activities and by publishing relevant material on our website, including tips and guidance.
I will now discuss our strategic privacy priorities.
The fast-paced evolution of the digital world, which many characterize as a fourth industrial revolution, is having a profound impact on privacy. Technologies such as always-on smartphones, geospatial tools, wearable computing, cloud computing, “big data”—advanced analytics—genetic profiling and the Internet of Things, raise significant, novel and highly complex privacy issues regarding collection, use and disclosure of personal information.
New technologies bring many benefits for individuals and economic growth for society. But they also raise important risks, such as government and corporate surveillance, and potentially the loss of personal control and autonomy.
In this complex, new environment, modernization of our privacy framework and the pressing need for greater transparency around how technology is used is critical to maintaining citizens' trust in government and the digital economy.
Last year, after wide-ranging consultations with various stakeholders, we established four strategic privacy priorities to help achieve the ultimate goal of helping Canadians exercise greater control over their personal information. These priorities, which will guide our work for the next few years, are as follows.
I will begin with the economics of personal information. With this priority, we aim to enhance the privacy protection and trust of individuals so they can participate in the digital economy with confidence. One of our first key actions will be starting an exercise to examine the consent model and identify ways to enhance users' control.
This spring, we will produce a discussion paper outlining challenges with the current model. We will then consult stakeholders on potential solutions, ranging from enhanced notices and information to consumers, technological solutions, greater self-regulation and accountability by organizations, to enhanced government regulation.
We should be able to suggest solutions some time in 2017, apply those that are within our jurisdiction immediately, and recommend legislative amendments, if necessary.
Our second priority is government surveillance. Under government surveillance, our ultimate goal is to contribute to the adoption and implementation of laws and other measures that demonstrably protect both national security and privacy. Our initial work, already under way, is to carry out a review of how the information-sharing provisions of the Anti-terrorism Act of 2015 are being implemented. The results of our survey should provide, we hope, a more concrete basis on which to assess the legislation and make any further recommendations regarding possible amendments. We will publish our initial findings in a report to Parliament later this year.
We also plan to be active on the issue of warrantless access by law enforcement to the personal information of citizens held by private sector organizations. Last June we provided input into Industry Canada's transparency guidelines, which established standards for transparency and accountability reports from companies that share personal information with law enforcement. Rules that encourage private sector reporting are a good start, but greater transparency from the public sector is just as important. It is, after all, the public sector that is seeking and receiving the personal information of Internet users for law enforcement purposes. We have therefore asked that federal institutions begin issuing their own transparency reports. Frankly, we find it unfortunate that they have not yet followed in the footsteps of their corporate partners.
Our third priority is reputation and privacy. On reputation and privacy, we want to help create an environment in which people can use the Internet to explore their interests and develop as individuals without fear that their digital trace will lead to unfair treatment. Under this priority, we will work to help enhance digital literacy among vulnerable populations, such as youth and seniors.
Last month we issued a discussion paper seeking stakeholder views on what practical technical policy or legal solutions should be considered to mitigate online reputational risks and how best to provide individuals with recourse when their online reputation is negatively affected by information that they themselves have posted or that others have posted about them.
Our fourth priority is the body as information. Here our goal is to promote respect for the privacy and integrity of the human body as the vessel of our most intimate personal information. In doing so, we will seek to learn more about the privacy implications of new technologies that collect information both about and from within our bodies. From there, we will work to inform both consumers and developers about the potential privacy risks of these technologies and how they can be mitigated.
On a final note, we are of course aware of the government's commitments to reform the Access to Information Act and its support for open government initiatives. While I support these initiatives, I would emphasize at the technical level how important it is that the Access to Information Act and the Privacy Act be seen as a “seamless code”, as was characterized by the Supreme Court of Canada in a case in 2003. More fundamentally, privacy should be seen as an enabler of transparency and open government by providing individuals with access to their personal information held by federal institutions, but there is is also a legitimate limit to openness when there is a risk of personal information being revealed inappropriately.
For these reasons, the two statutes need to be considered together. I stand ready to provide you with solutions that would ensure that the Privacy Act is responsive to the realities of today's digital world.
Thank you for your attention. I would be glad to take your questions.
Mr. Chair and honourable members of the committee, I thank you for inviting me to appear before you today as the committee considers its future business. Given that the committee has a number of new members, I will begin by briefly reviewing my mandate and the activities of my office.
As Conflict of Interest and Ethics Commissioner, I administer two conflict of interest regimes: the Conflict of Interest Act and the Conflict of Interest Code for Members of the House of Commons. These two regimes seek to prevent conflicts from arising between the public duties of elected and appointed officials and their private interests.
The Conflict of Interest Act currently applies to over 2,100 public office holders. This number will likely increase significantly as the remaining ministerial staff positions are filled.
All public office holders are subject to the act's core set of conflict of interest and post-employment rules. More than half of those covered by the act are subject only to these general rules. This group is made up primarily of part-time members of federal boards, commissions, and tribunals, as well as some part-time ministerial staff.
Over 800 public office holders are currently designated as reporting public office holders. Reporting public office holders include ministers, parliamentary secretaries, ministerial staff, and all full-time Governor in Council appointees such as deputy ministers, heads of crown corporations, and members of federal boards. They are subject not only to the act's general rules but also to its reporting and public disclosure provisions, as well as prohibitions against outside activities and holding controlled assets.
The act also sets out a few additional requirements for reporting public office holders who are ministers or parliamentary secretaries.
My approach in administering the act is based primarily on prevention. My staff and I provide public office holders with confidential advice on specific matters. We seek opportunities to educate them about the act's requirements as individuals or as groups; we review their confidential reports related to their assets, liabilities, and activities; and we maintain a system of public disclosure.
There are also several ways in which I can enforce the act. I can impose administrative monetary penalties for failures to meet certain reporting requirements, but only for designated public office holders. I can issue compliance orders to ensure public office holders meet their obligations in the future. I can initiate formal investigations, called examinations, of possible contraventions. Finally, I can issue public reports that set out my conclusions.
This committee has oversight responsibility for my office and reviews its annual spending estimates as well as matters related to my annual reports under the Conflict of Interest Act. I've appeared before the committee a number of times since becoming Conflict of Interest and Ethics Commissioner in 2007 to testify about my budgetary submissions for the main estimates and, in the early years of my mandate, to speak about my annual reports under the act.
I also contributed to the committee's five-year review of the Conflict of Interest Act. Section 67 of the act sets out a requirement for a comprehensive review of the act's provisions and operations to be taken within five years after its coming into force. Unlike the members' code, which indicates a provision for a review every five years, the act provides only for this one-time review. The committee began its review in January 2013. I was invited to provide a written submission and appeared before the committee twice, in February and March of 2013, to discuss my recommendations.
I made over 70 recommendations; in fact, I think it was closer to 100. Some of them addressed broad thematic areas that I considered to be priorities.
These include broadening the scope of conflict of interest to extend to entities rather than limiting it to persons. The lawyers among you will know what that's all about; it's because “persons” includes corporations, but not things like partnerships and associations, and “entities” is what's used in the members' code, as a matter of fact.
Other priorities are increasing transparency around gifts and other advantages, strengthening the act's post-employment provisions, and narrowing the overly broad prohibition on engaging in outside activities. There I'm actually trying to pull back on some of the rules and to narrow the overly broad prohibition on holding controlled assets.
Another recommendation was to include some disclosures and reporting obligations for public office holders. Unlike reporting public office holders, the regular public office holders don't currently have any reporting obligations.
Other recommendations are addressing misinformation related to investigative work and adding administrative monetary penalties for breaches of the act's substantive provisions.
The committee completed its review in February 2014 and issued a report containing 16 recommendations that were fairly narrow in scope and of a largely technical nature. Two of my recommendations were retained by the committee, although a number of my recommendations were mentioned in the body of the report.
I note that the report was not unanimous. It was accompanied by two dissenting opinions, and they were strong dissenting opinions that expressed strong objections.
Many of the committee's recommendations were new to me, and I did not have an opportunity to comment on them. One example is the recommendation that proposes changing the definition of public office holder to include members of organizations that collectively bargain with the Government of Canada. Such an amendment would exponentially increase the number of public office holders covered by my act and would completely change the nature of my office. It might well also create an overlap—in fact, it would—with certain existing regimes, such as the public service values and ethics regime.
The government responded to the committee's report in June 2014 by expressing its support for the committee's recommendations. However, no amendments to the Conflict of Interest Act have been proposed as a result of the five-year review. Because this is a new parliament, this might be an opportune time, if the committee wishes, to revisit that review or undertake a new one. I would hope that you would consider my original recommendations should you do so, and I would be pleased to provide any input requested.
Mr. Chair, in closing, I wish to assure the committee that I am available to provide any information that it may require about any matters related to my office and to the Conflict of Interest Act. I look forward to a productive relationship between the committee and my office going forward.
Thank you for your time. I will now be happy to answer any questions you may have.
Thank you, Mr. Chair, and good morning everyone.
I am delighted to be here and to meet all of you, for the first time in most cases, except for the chair of the committee.
Mr. Chair, I thank you for this opportunity to assist the committee in setting its priorities for this session. The Access to Information Act provides Canadian citizens, permanent residents, individuals, and corporations who are present in Canada with the right to access government information, subject to certain limitations.
The Information Commissioner conducts confidential investigations into complaints about institutions' handling of access to information requests.
The Supreme Court of Canada has held that the purpose of access legislation is to facilitate democracy by helping ensure that citizens have the information they need to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.
The Access to Information Act is over 30 years old. Over the act's three decades of existence, technology, the administration of government and Canadian society have been transformed in many regards. And yet, despite these changes, the act remains largely in its original form.
When the act became law, information was mostly paper-based. When we began working, most of us had binders and files in which we stored our documents at the end of the day. We always knew where everything was. Most of us even had a secretary who filed information for us and found it when we needed it. As we know, the situation has changed profoundly.
The sheer volume of electronic data and the speed and methods of transmission have challenged government's ability to collect, store, manage and share information with the public.
As stated in the Speech from the Throne, the government is committed to being “open and transparent”, a government that builds and fosters trust that Canadians have in public institutions. A key component of an effective and open government is a modern access to information law that maximizes disclosure of government information in electronic and non-static formats. This influx of information to the public increases accountability and facilitates collaboration between government and the citizenry about how best to deliver programs and services.
Mr. Chair, I am very cognizant of the fact that the government and this committee have much work to accomplish. In this context, a clear focus on results will be a key to success. With this in mind, my recommendation to the committee is to give priority to the modernization of the Access to Information Act. This priority, as stated, is consistent with the Speech from the Throne and the Prime Minister's mandate letters to the president of the Treasury Board, the , and the
You have before you my special report, entitled “Striking the Right Balance for Transparency”, tabled in Parliament last year. The report contains a comprehensive set of recommendations to modernize the act to deal with the current realities and expectations of Canadians. These include extending the coverage of the act, increasing timeliness, maximizing disclosure in line with a culture of openness by default, strengthening oversight, and adding consequences for non-compliance.
In formulating the recommendations contained in the report, I have looked at international, provincial and territorial legislation, annual reports and model laws; I have reviewed all reform proposals made by former commissioners and all studies of the act. The recommendations are also based on my own experience, after completing over 10,000 cases during my mandate. The report—and this is my suggestion—could be a starting point for your review of the act.
In closing, I would like to thank the committee for the opportunity to present what I strongly believe should be the committee's priority in relation to openness and transparency. Please be assured of my commitment to assist the committee as it moves forward on its agenda. I will be pleased to answer your questions.
You're starting with an easy question.
Some hon. members: Oh, oh!
Mr. Daniel Therrien: Of course, I would start this with the need to balance security and privacy. Privacy here would be in the form of safeguards, in technological terms, to protect the personal information of individuals on the Internet, and these safeguards rely, to an important degree, on encryption.
First of all, the debate that has been happening in the past few days involving the Apple company and the U.S. government is in the context of U.S. legislation, and there may be some differences between U.S. and Canadian legislation. However, the debate is not a U.S. debate; it is a universal debate, and it absolutely has extreme relevance in Canada.
One important factor to keep in mind, other than the general balance between security and privacy, is that companies ought to be amenable to law—to warrants, to court decisions. Companies are governed by law. That's one important factor. However, the law needs to bear in mind the realities of technology, and I think that's where the dilemma lies.
Law can dictate to companies to act in a certain way and provide information to government and law enforcement. The difficult issue here is that if the law were to do this, what impact would that have in terms of technological capacities? If you break encryption or somehow create an exception to the protection provided by encryption technology, what impact does that have outside of the case in which the information might be sought, and does it undermine protection for the population generally?
It's a complicated issue. There are legal issues, but the technological issues are at least as important.
There's nothing in the Lobbying Act in terms of conflict of interest, but there is in the Lobbyists' Code of Conduct. As I was saying in my opening remarks, the reason it's in the code and was in the previous code as well since 1997 is to assure Canadians of the integrity of the decisions being made by the government.
There are a number of ways that a public office holder could be placed in a conflict of interest. This is why I've specifically broken them out in the rules in terms of whether preferential access is being given because of the relationship of the lobbyist to the public office holder.
There is the issue of gifts. For example, is a gift being given by a lobbyist to a public office holder whom they are lobbying, or will lobby, a gift that the public office holder cannot accept? As my colleague was saying, one thing I would be looking at is whether an individual can or cannot receive a gift.
Political activities is also an area that has been broken out, following a court case in 2009. If that's of interest to the committee, I can share the details with you, but basically it involves the notion of it being not a real conflict of interest but only an apparent conflict.
There is that tension that exists between the private interests of a political office-holder and their duty to serve the public interest. That standard test, as I mentioned, is what I and my investigators would use to determine whether a conflict of interest had been created.
Thank you for this question.
In my remarks I spoke to transparency, which is one issue, and to what extent companies and government should disclose to the public, in broad statistical terms, how often there is a sharing of information between companies and government for law enforcement purposes.
Now you're asking the substantive question of what ought to be shared by telecommunication providers, for the most part, and law enforcement. The first place to look at on this issue, of course, is what the Supreme Court said in 2014 in the case of Spencer. In that case, the court set out excellent guidelines. In terms of companies sharing information with law enforcement, it set out that the principle is the principle of warrants. These communications should as a rule be authorized by a court, on the principle that courts are well placed to balance the interests of the police in getting that information and the interests of individuals in having their privacy protected.
The court did outline three very narrow exceptions to the rule. One in particular has to do with emergency situations. If the police are investigating a crime that is about to be committed and they need personal information, that is one exception to the warrant rule. However, the rule is clearly warrants, with very narrow exceptions.
There's a lot in your question.
In general terms, in order to have effective protection for human rights and privacy, you need two things: oversight and review.
Oversight by Parliament will be debated according to what we see in the mandate letter. That would be an improvement over the current system.
It is also necessary that there be what I will refer to as administrative review. The review would be conducted by bodies such as SIRC, the commissioner for the Communications Security Establishment, etc. You need oversight and review, both parliamentary and administrative. This is one set of protections.
It's also necessary to have clear, substantive, legal rules as to how national security or law enforcement is to collect information. For instance, there was a question about when warrantless access is permissible by law. Normally warrants are required, except for very defined circumstances. I think you need both oversight and review, parliamentary and administrative, but it is equally important to have substantive legal rules that create the right balance between security and human rights.
Well, let me just say right now, because I do talk about budgets, that as I've said in a previous version of this committee, I'm running a lean organization. I have 28 staff, and thanks to them I've been able to operate and make appropriate trade-offs in terms of how much I invest each year.
I mentioned that when I was cut, I wasn't able to invest in the registration system, which is a key operation in my office. I'm now going to be, as one of the priorities this year, investing in it, but again it's a trade-off.
At this time, I'm not asking for more funds, but if I had them I would be able to do more. For example, I have one legal counsel and one communications person, so I'm very limited as to what I can do. However, I have great support staff, who are very professional and support each other. We have backups on some of these things.
More money would allow me to invest more in the registration system. We've heard about technology from my colleagues as well today, and I'm looking at where I can do more. For example, having an app to make it easier for lobbyists to put something into their BlackBerry after a meeting that would automatically go into the registration system would, I think, be great for compliance.
That's a quick summary.
I follow the wording of the act or the code when I determine what the bar is, and, as I indicated earlier, sometimes the bar in the letters and in the accountability guide is higher.
I frequently give what I call hard advice and soft advice to people. I'll say “Look, you're not contravening the act if you do whatever, but it may look like you're contravening the act, so consider whether you want to take the risk. You know, the Globe and Mail test.”
Basically, the conflict screens are meant to address these issues, and maybe I should explain a little about how the conflict of interest screens work.
We set up a mechanism whereby anything that looks like a matter that might be a conflict is received by an assistant or a deputy minister or somebody else it's going through, and it's stopped. If somehow something makes its way through, if something slips through by accident, there is the mechanism of recusal. That's not only within the department; it could be in any of their activities, because somebody's managing their work schedule. There are two levels of dealing with these kinds of issues.
However, just because somebody has an interest in something that may appear to be a conflict, if they have adequate screens to stop them from having that problem, that's what happens.