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Can Canada's Likely New Privacy Commissioner Be Trusted to Watch the Watchers?

Former Justice Department lawyer Daniel Therrien raises red flags.

by Matthew Braga
Jun 1 2014, 3:00pm

Canada's next privacy Commissioner is a federal Justice Department lawyer who counsels the government agencies that impact privacy in Canada the mostagencies such as the NSA's Five Eyes cyber surveillance partner Communications Security Establishment Canada (CSEC), which operates an extensive, secretive metadata collection program that the country's citizens know very little about. 

The appointment last week of Daniel Therrien is being questioned by some privacy experts, lawyers, and politicians, who fear a nominee with close government ties to law enforcement agencies may not be impartial in dealings with privacy concerns.

And the timing of the nomination also means that the country's top privacy watchdog will be unavailable to comment on a controversial cyberbullying bill that introduces new surveillance powers, and which may soon become law.

In a statement, the Prime Minister called Therrien "a well-qualified candidate who would bring significant experience in law and privacy issues to the position.” Liberal leader Justin Trudeau also approved the appointment, writing in a letter to the Prime Minister that Therrien's "knowledge and experience, as well as his distinguished record of public service, will be of great benefit to Canadians."

However, the appointment was immediately questioned, with NDP opposition Leader Thomas Mulcair raising one of the red flags. "I have come to the conclusion," Mulcair wrote in a letter of his own, "that Mr. Therrien has neither the neutrality nor the necessary detachment to hold this position."

"I think the consensus is that Mr. Therrien is a skilled advocate and has been a public servant for a number of decades and is held in high-regard," said criminal defence lawyer Michael Spratt, who practices with Ottawa firm Webber Goldstein Abergel. "But his previous position and the timing of his appointment can raise some legitimate concerns."

The Privacy Commissioner of Canada is what Spratt calls "the last line of defence" in protecting the privacy of Canadian citizens. The commissioner's office has top secret clearance to investigate government privacy practices and the handling of user dataan exceptional level of access not even afforded to the country's provincial privacy watchdogsas well as power to investigate and audit third party companies at home and abroad.

But some are questioning the wisdom in appointing a commissioner who has, in at least one known case, shaped a policy that would typically be scrutinized by privacy watchdogs, and as part of his prior position was likely privy to many others. 

According to a biography published on the government's website, Mr. Therrien co-led a team that defined privacy principles for data shared between U.S. and Canadian border servicespractices which have come under fire in the past from both former Privacy Commissioner Jennifer Stoddart, and Ontario’s own provincial privacy commissioner Ann Cavoukian.

As the Justice Department's assistant deputy attorney general of public safety, defence, and immigration since 2005, it is likely Therrien would also have been privy to certain policies and practices of Canada's Five Eyes cyber surveillance partner Communications Security Establishment Canada (CSEC)such as the agency's metadata collection program revealed last yearas well Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP)

Cavoukian told The Globe and Mail that neither her, nor her colleagues, had heard of Therrien's work. 

"It certainly raises the spectre that the government is seeking to appoint someone who has a narrower view of privacy than would otherwise be desirable in that office," said Spratt.

However, University of Ottawa law professor Michael Geist cautions that, in the long term, it's hard to say what effect Therrien's appointment might have. "I'm a believer that just because you did certain things or were tasked with adopting certain positions in a prior job, doesn't mean that that's necessarily the position you're going to take in the future," Geist said, referring to Mr. Therrien's borer policy work, and pointing to interim privacy commissioner Chantal Bernier who also came from a public safety background.

Halifax lawyer David Fraser and partner at McInnes Cooper also said he would reserve judgement. 

"One thing that's a possible silver liningbecause I don't want to catastrophize anything[is that] yes, he was the principal legal advisor to all these organizations that I've been quite critical of in their approach to surveillance and things like that. But I don't think we've had anyone as the privacy commissioner with the same level of knowledge of what's going on," Fraser said.

Of greater concern to Geist is the appointment's near term effect. The government is currently hearing from witnesses regarding Bill C-13a new set of laws that the government maintains are intended to protect victims of cyberbullying, but at the same time greatly expand police surveillance powers.

Thus far, provincial privacy commissioners and major civil liberties groups have been denied the chance to speak, while outgoing interim federal Privacy Commissioner Chantal Bernier decided it was not her place to comment as she prepared to leave the post.

"We're not even going to hear from a privacy commissioner," Geist said. "It's remarkable to think that one of the lead privacy issues of the last decadelawful accesswill apparently go through a committee process without hearing from the lead privacy official in the country."

Neither Geist nor Fraser had heard of Therrien prior to his appointment. Geist remarked that other candidates with prior privacy commissioner experience might have been better positioned to jump more quickly into the C-13 debate.

Therrien will appear before a committee next Tuesday for questioning.

Though he must still be approved by both the House of Commons and Senate before the role is official, Prime Minister Harper's Conservative government maintains a majority in both, making it likely the nomination will pass.