Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts, or the Digital Charter Implementation Act, has been introduced by the federal government with the promise that it would enhance privacy protections, adequately regulate AI and protect human rights. The bill, however, is not up to the task.

We have recently published a joint open letter with 45 leading civil society organisations, experts and academics outlining key concerns with the bill.

We have also sent a brief to the House of Commons Standing Committee on Industry and Technology for their current study of Bill C-27. Our submission covers the following areas and general recommendations:

1. 1. The Consumer Privacy Protection Act (CPPA)
      1. Recognizing privacy as a human right
      2. National security-related exemptions to consent must be removed
   2. The Personal Information and Data Tribunal Act (PIDTA)
   3. The Artificial Intelligence and Data Act (AIDA)
      1. Over-arching concerns
      2. Expanding scope of coverage of AIDA
      3. Definition of harms must be extended to include group-based harms
      4. Exclusion of national security related technology must be rescinded
      5. Need for independent oversight and review

Given that our expertise is on the impact of anti-terrorism and national security on human rights and not specifically on consumer privacy protection, there are areas of this bill that we have not commented on. We would emphasize, though, that our silence on certain sections does not signal support, given that we are aware that there are several other aspects of this bill that privacy, consumer rights, human rights and civil liberties organizations are raising concerns over.

In line with our mandate, however, we have shared serious specific concerns regarding national security related exemptions:

1. We are deeply concerned that Bill C-27 maintains overly-broad exceptions to consent when it comes to the collection, retention, use and disclosure of personal information for national security reasons. We believe that these provisions (s. 47 and 48) must be removed from C-27. If they remain, though, such activities should only be possible, by law, if there are “reasonable grounds to believe that the information relates to an imminent threat to national security, the defence of Canada or the conduct of international affairs.”

2. Despite the exponential growth in interest for the use of artificial intelligence tools by governments for counterterrorism and national security purposes as well as their serious risks to human rights, Bill C-27 shockingly excludes the application of the Artificial Intelligence and Data Act to:
   “…a product, service or activity that is under the direction or control of
   (a) the Minister of National Defence;
   (b) the Director of the Canadian Security Intelligence Service;
   (c) the Chief of the Communications Security Establishment; or
   (d) any other person who is responsible for a federal or provincial department or agency and who is prescribed by regulation.”

   This exclusion of national security related technology must be rescinded.

Read our full brief for more details on each section, our recommendations and specific legislative language for amendments.

Our organizations, with decades of expertise in the areas of immigration and refugee law, criminal law, human rights, international law, civil liberties, and national security, are coming together to ensure that the Public Complaints and Review Commission (PCRC), to be established through Bill C-20, sets up an effective, independent, fair and accessible accountability process, from start to finish, in regard to the activities of the Royal Canadian Mounted Police (RCMP) and the Canada Border Services Agency (CBSA).

This includes ensuring access and removing barriers for complainants and their advocates, including for systemic complaints; preventing the CBSA and RCMP from investigating themselves; ensuring recourse and redress as a result of review; and enshrining the ability for judicial review to ensure process is followed.

The below proposals address these concerns in the proposed legislation. See annex A [PDF] for specific legislative wording.

Amendments are required to remove barriers to making well-founded complaints

Bill C-20 must be amended to better allow for third parties, particularly public-interest organizations and NGOs, to be able to file complaints. The current wording of the bill also establishes unnecessary barriers to the filing of complaints that should be removed.

• Facilitation of third party complaints, which can help to shed light on systemic issues, including systemic racism.
  • Sections 33(1) and 33(2) should be amended to explicitly allow third parties to submit complaints.
  • In order for this to be viable, other related amendments are necessary:
    • Amend the bill by striking sections 38(1)(b) and 52(1)(b), which limit the complaints to directly impacted individuals and those representing them, and instead explicitly allow for public-interest/NGO third party complaints by inserting “or third party” after “Any individual,” i.e. “Any individual or third party may.”
    • Amend s. 44(1) to explicitly allow third parties to make representations.
    • Amend s. 59(7) by removing the requirement for parties to have a “direct” interest in the complaint to make representations and otherwise participate in hearings.
• Instead of a strict one year time limit, the body receiving the complaint should have discretion, based on defined criteria, to decline to investigate a complaint based on the time elapsed after either the conduct in question, or the date that it was discovered that such conduct occurred. We would recommend a two-year period from the later of the date of the conduct, or the date that the conduct was discovered to have occurred. Amend ss. 33(3), (4), (5) and (6) accordingly.
• Allowing for complaints to be dismissed based on being trivial will likely lead to valid complaints being dismissed and obscure patterns of racial and other forms of discrimination. The word ‘trivial’ should be deleted from s. 38(1)(a) and 52(1)(a).
• The provisions allowing for termination of a complaint where it is “not necessary or reasonably practicable” to continue the investigation should be deleted (ss. 38(1)(e) and 53(1)(b)).
• All provisions preventing or terminating the investigation of complaints due to their impact on the administration or enforcement of program legislation or the investigation or prosecution of any offence (i.e., ss. 37(3)&(4), 46(2), 52(6)(a) & (b) and 60(1)) should be replaced with more targeted language allowing for complaint investigation to be postponed or suspended if it would seriously hinder a criminal investigation or prosecution.
• Section 52(5), requiring the Commission to refuse to address a complaint if it could have been adequately or more appropriately dealt with according to another procedure provided for under any Act of Parliament or a legislature of a province should also be removed.

Amendments are required to allow for complaints regarding systemic issues and to remove barriers to the PCRC carrying out systemic reviews

Complaints regarding the RCMP and CBSA must not be limited to individual cases, and instead must be amended to allow for the public to file complaints regarding systemic and policy issues, including systemic racism and discrimination, patterns of behaviour or problematic policies and operations.

• Amend sections 33(1) and (2) to allow for individuals and organizations, including third parties, to submit systemic complaints; alternatively, a new section could be added to allow for the same.
• Amend section 28 to allow organizations to request a specified review, and to explicitly allow the Commission to consider the actual content and impacts of policies, procedures, guidelines, and practices, including whether they comply with international and domestic human rights law and standards and result in systemic racism and other forms of discrimination.
• Delete subsection 28(3)(a), which requires that the Commission must be satisfied that “sufficient resources exist for conducting the review and the handling of complaints under Part 2 will not be compromised.”

Amendments are required to ensure independence of investigations

Given the systemic racism that has been acknowledged to plague both the RCMP and CBSA, leaving them to investigate themselves leads to an apprehension of bias by design and may exacerbate existing problems. Establishing an independent investigative unit with resourcing to address all complaints within the PCRC will take time and presents a complex endeavour, but is achievable.

While we have attempted to provide specific amendments for the other points in this document, the complexity of amendments on this issue, and concern around resources, makes it difficult to provide exact language. However, in general terms, we believe these amendments and steps may move in the right direction:

In order to ensure proper resourcing, staffing and training at the PCRC to take on the role of sole investigator, the government could implement a transition period during which more investigations are handled by the PCRC, with the goal of full PCRC control over investigations as soon as possible, and within a maximum of five years

To do so, Bill C-20 could also be amended to remove sections 37 to 39, which require CBSA and RCMP to investigate, in favour of a system where the PCRC is given the role of primary investigator, with the power to delegate investigations, as necessary, to the RCMP or the CBSA.

Section 51(1) already states that:

Subject to section 52, after receiving or being notified of a complaint, the Commission must investigate the complaint or institute a hearing to inquire into it if the Chairperson is of the opinion that it would be in the public interest for the Commission to do so. [emphasis added]

This provides appropriate language and a starting point for granting the PCRC primary – and eventually sole – investigatory powers.

Amendments are required to ensure recourse during an investigation, and redress upon success

In order to give force to the complaints process, the PCRC must be armed with necessary powers to address interim needs during an investigation and provide redress upon a successful complaint.

• Amend section 28 strengthen requirements to enact the PCRC’s recommendations;
• Amend sections 67, 68 and 84 to allow the PCRC to:
  • Recommend a stay of removal and other interim remedies during the investigation of a complaint;
  • Initiate a disciplinary process, or impose a disciplinary sanction, at the conclusion of complaint hearings;
  • Recommend certain forms of redress, particularly in the form of halting removals from Canada or allowing re-entry;
  • Order financial redress or awards for founded complaints.

Amendments are required to ensure judicial recourse

The work of any administrative body must be subject to judicial review to ensure compliance with its enabling statute.

• Remove s. 65, which precludes possibility of judicial review

SIGNED BY:

Amnesty International Canada (English-speaking)

BC Civil Liberties Association

Canadian Association of Refugee Lawyers

Canadian Civil Liberties Association

Canadian Immigration Lawyers’ Association

Canadian Muslim Lawyers’ Association

Canadian Muslim Public Affairs Council

International Civil Liberties Monitoring Group