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Question in Senate Chamber: Motion to Resolve into Committee of the Whole to Receive Mr. Daniel Therrien, Privacy Commissioner Nominee, and that the Committee Report to the Senate No Later than Two Hours After it Begins—Adopted


Business of the Senate

Hon. Yonah Martin (Deputy Leader of the Government): Honourable senators, pursuant to rule 4-13(3), I would like to inform the Senate that as we proceed with Government Business, the Senate will address the items in the following order: Motion No. 43, followed by Motion No. 44, followed by all remaining items in the order that they appear on the Order Paper.

The Senate

Motion to Resolve into Committee of the Whole to Receive Mr. Daniel Therrien, Privacy Commissioner Nominee, and that the Committee Report to the Senate No Later than Two Hours After it Begins—Adopted

Hon. Yonah Martin (Deputy Leader of the Government), pursuant to notice of May 29, 2014, moved:

That, immediately following the adoption of this motion, the Senate resolve itself into a Committee of the Whole in order to receive Mr. Daniel Therrien respecting his appointment as Privacy Commissioner;

That the Committee of the Whole report to the Senate no later than 2 hours after it begins.

The Hon. the Speaker: Is there discussion on this motion, or are you ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)


 Privacy Commissioner

Daniel Therrien Received in Committee of the Whole

(The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Pierre Claude Nolin in the chair.)

. . .

Senator Cools: Honourable senators, I thank you very much. I would like to begin by welcoming the witness, Mr. Therrien, to our Senate. I would also like to take the opportunity of thanking him for his many and long years of service. I would also like to add that his credentials are indeed impressive. I just wanted to put that out front very quickly.

Mr. Therrien: Thank you.

Senator Cools: Honourable senators, Mr. Therrien, by your remarks, and I have been listening for quite some time now, four times — at least three but I believe I counted four — you have made a statement to wit your allegiance is to Parliament. I wanted to get some clarification on that. I will tell you why I would like some clarification.

Your position, your office or your future office or your hoped-to-be office of Integrity Commissioner is described by many as — sorry —

An Hon. Senator: It was close.

Senator Cools: No, they are quite different. As Privacy Commissioner. There is an abundance and a plethora of literature these days describing the office and that whole collection of positions — Auditor General, Official Languages Commissioner, et cetera — as officers of Parliament. I wonder if your statement "allegiance to Parliament" is as part of that group.

Before I get there, I wish to be clear there is no such constitutional creature as an officer of Parliament; neither are these officers of Parliament agents of Parliament. Some serious parliamentary clarification is required on this point. I have found it very disturbing that some of these individuals, and I won't cite them by name, describe themselves as officers of Parliament, the guardians of Canadian values who are far above the fray of partisan politics with this great duty to guard Canadian values.

Honourable senators, I want to clarify that the term "officers of Parliament" is a great misnomer. These officers are neither officers of Parliament neither are these claimed officeholders agents of Parliament. It is not clear at all that they are even the servants of Parliament.

Honourable senators, it is very important. As a witness, sir, you referred to allegiance to Parliament. Allegiance is owed to Her Majesty. I have no doubt that you have a great sense of allegiance to Her Majesty, but there is copious literature on this. I was just reading a little while ago a book by a Department of Justice senior lawyer entitled Officers of Parliament: Accountability, Virtue and the Constitution. In this abundant literature that has multiplied in the last many years, these officerholders are viewed as virtues based officers.

I wish to clarify this because, Mr. Therrien, your role is extremely important and must be extremely focused because the era is begging for better and greater regulation of privacy rights. I just wanted to say that out to you.

Honourable senators, if we were to go and take a peek at the Public Officers Act and the Seals Act, in their Formal Documents, under the heading "Officers of Parliament" they only list the officers of the houses — the clerks, the Black Rod and the Sergeant-at-Arms, those sorts of officers. The interesting thing to note about Parliament is that its officership follows the houses. Those persons, such as the Clerk of the Senate, the Clerk of the House of Commons, the Black Rod and the Sergeant-at-Arms, are attached to the separate houses, not to Parliament per se. I wanted to say this in the hopes that that will be incorporated in our conclusions.

Honourable senators, privacy is your issue and will be your passion. I think you have served with great passion and commitment and, in addition to that, with great intelligence and I would say quite a mental prowess. I have no doubt that privacy will be a passion for you.

What I want to put forward for your consideration, if you care to answer or feel so inclined, is that I have been struck that in today's community any person who opts to serve in public life seems to lose all privacy rights. If a person comes to serve as a senator or serve in the House of Commons, it is as though they have lost all privacy rights. I do not know if anybody at the highest levels of legalistic conceptualization and formation of legal concepts and legal responses has paid any attention to this. I give you an example.

The Chair: Senator Cools, do you want the witness to answer or comment?

Senator Cools: Mr. Therrien, would you care to comment on what I have said so far? Go right ahead.

Mr. Therrien: I welcome your guidance, senator, on the concepts of "officers." Certainly when I have described myself as eventually an agent of Parliament, it was in relation to my current allegiance to the executive. I wanted to make that perfectly clear, but I take your guidance on these concepts. Thank you.

Senator Cools: That is what I heard from you, I must say.

Honourable senators, it is just that this time last year we were in a situation here involving the suspension of three senators. I found it all extremely disturbing. I still find it disturbing. I saw these peoples' careers smashed. I saw them accorded no privacy rights, or other rights, whatsoever. There are large issues looming here before these institutions, before both houses, in respect at the point at which somebody hands files over to the police and the points at which internal processes intrude into their calendars and emails which are opened up without their permission.

Honourable senators, I am very sympathetic to Mr. Therrien's new office, because I understand the complexity and the difficulties involved in today's contemporary society where information is moving so quickly. I wonder if there is forming anywhere in the minds of those who evolve solutions to these problems the protection of human beings who serve in respect of their privacy rights.

Mr. Therrien: I am not aware of any such writings. What I am tempted to answer is that beyond the statutory protections provided by the Privacy Act and PIPEDA, there is a constitutional right to privacy that applies to all, whether governed by these two statutes or not, and that constitutional right to privacy would be part of what I would consider in my actions.

The Chair: Senator Cools, I will put you on the second round, if we have time.

Senator Cools: Put me on the second, but this is a matter, Speaker pro tempore, that we should deal with not under this aegis, not under this rubric, but at a future time. What are the limits to privacy — and I'm not just speaking of the two chambers — for those who serve, even people like himself?

. . .

The remainder of this day's Senate Debates are available here.