The public fuss over the privacy commissioner

Welcome to the job, Daniel Therrien
The chamber of the House of Commons is seen during Question Period Wednesday March 27, 2013 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Adrian Wyld/CP
Adrian Wyld/CP

Thomas Mulcair seemed not to understand how the Prime Minister could not understand that Canadians would understand the problem here.

“Does the Prime Minister understand,” the NDP leader asked on Monday, “why Canadians find it more than a little bit creepy that the Prime Minister wants to name this guy to protect their privacy?”

This guy is Daniel Therrien, a career civil servant with 33 years of experience in government, most recently as the assistant deputy attorney general for public safety, defence, and immigration. It is just Mr. Therrien’s luck that he should come along as a contentious piece of legislation, Bill C-13, is before the House. But it is his close linkage to the government’s security and law enforcement apparatuses that so deeply concerns the NDP. And thus did Mr. Mulcair, irresponsibly I’d say, attempt to link Mr. Therrien to the case of Ellen Richardson, a woman turned away at a border crossing because her record showed a suicide attempt.

The NDP acknowledges there is no available evidence to suggest Mr. Therrien was specifically responsible for the policy in question. Rather, the party argues that Mr. Therrien is linked to a separate accord with the Americans that raises questions about the sharing of personal information. A question on that specific accord might’ve had the benefit of being particularly relevant. As it is, the raising of Ms. Richardson’s case seems like an inflammatory red herring and Mr. Mulcair’s apparent assigning of responsibility to Mr. Therrien for it seems an entirely unfortunate and unbecoming move. (Whatever Mr. Therrien’s role in the policies of the government, we might also have a discussion here about how responsible any official is for government policy.)

In fact, under questioning in the Senate yesterday by Senator Art Eggleton, Mr. Therrien testified that the information-sharing agreement implicated in the case of Ms. Richardson was not negotiated by him and pre-dated his work and that he was “concerned about this type of sharing” and “would be looking certainly to see if rules need to be changed to make sure that this type of event does not occur.”

In response to Mr. Mulcair’s complaint on Monday, Mr. Harper attempted to be reassuring.

“Mr. Speaker, the individual in question is a non-partisan public servant of some 30 years’ experience and an expert in his field,” he said. “He comes highly recommended. We are convinced he will do a good job, but obviously we will let Parliament examine this.”

Mr. Therrien did appear before the House committee on privacy and ethics yesterday morning, but his time there was not enough to soothe the concerns of the official opposition.

“Mr. Speaker, there is confirmation today that the Prime Minister’s pick for Privacy Commissioner has given legal advice to CSIS, CSEC and the RCMP, Canada’s key surveillance and data-gathering organizations. These are the same organizations that he would now have to investigate on programs he helped to develop and approve,” Mr. Mulcair explained yesterday afternoon. “Do Conservatives still not see that this is about protecting the intimate private lives of Canadians? What do they not understand about this obvious conflict of interest?”

Now it was Tony Clement’s turn to reassure. The Treasury Board president proceeded to use the word “experience” thrice before boasting that, “This appointment was made pursuant to a very rigorous process where a number of highly qualified individuals were identified, and we have found the person who is the most qualified to actually have this position.”

The enthusiasms were repeated en francais—significant experience, highly qualified, the best candidate—and then Mr. Clement repeated the word “experience” a couple more times.

But the NDP persisted and Mr. Clement was profoundly saddened.

“That is what New Democrats do,” he lamented. “They attack individuals who have had 30 years experience serving the public sector. That is what they do. They should be ashamed of themselves.”

Somewhere Kevin PageMarc MayrandScott Clark and Peter DeVries nodded grimly.

There is surely something to be said here for respecting the potential insight of those who have long served in the civil service. If it is perhaps unclear how such individuals should be criticizedquestioned or doubted—no one, of course, should be considered beyond criticism—we might say that we should deal precisely with their qualifications and contributions. (Though perhaps that would afford them a level of respect we don’t provide for anyone else.) Not least when the individual is (or will be) an officer of Parliament—those hearty souls who sign up to act as convenient reference points for duly elected partisans and the viewing public.

But then how, in the case of Mr. Therrien, might we best consider those qualifications and contributions? The official scrutiny of Mr. Therrien will apparently amount to an hour in front of that House committee and a subsequent hour in front of a Senate committee.

And on this count the NDP was also, with justification, unimpressed. “Mr. Speaker, today, Conservatives continued undermining the independent officers of Parliament. There was less than an hour to vet the nomination for the privacy commissioner, which has raised alarm bells across the country. The Conservatives ignored the precedent of having a review with expert witnesses,” Charlie Angus declared this afternoon. “Why are Conservatives undermining Parliament and ramming through such a controversial appointment without input from privacy experts?”

Once again, Mr. Clement was unconcerned. Indeed, he was apparently quite satisfied.

“The candidate appeared before committee today, as we all wanted him to do,” the Treasury Board president explained. “I think he defended himself extremely well. He is clearly the best candidate for the position.”

Of course, if he’s such a fine candidate, Mr. Therrien should be able to ably withstand more scrutiny—and if the government is both so sure of his bonafides and so eager to see Parliament well served by its officers, it should welcome that scrutiny. Whatever Mr. Mulcair’s overreach in trying to make a case against Mr. Therrien, there might still be reasonable questions to ask about his appointment.

But if he is to be confirmed soon, his work—and how observers regard it—will likely come to define his suitability.

Appearing before the House committee, he attempted to assure Parliament of his independence and ability. And he at least showed a certain willingness—testifying, after some reluctance in light of the fact that he is not yet an officer of Parliament, that he would rather C-13 be split into two bills.

The New Democrats did not make this the focus of Question Period on Tuesday, but Mr. Angus did put it to the government that the bill be delayed. And that suggestion was then ignored by the Justice Minister.

Indeed, according to Peter MacKay’s office, “There is absolutely no need to split this bill.”

So the NDP is stuck with an officer whose qualifications they doubt, but whose opinion on C-13 they agree with, while the government is stuck with an officer whose suitability they laud, but whose opinion on C-13 they dismiss.

So there and so welcome to the job (soon enough), Mr. Therrien. Whatever your credentials—and whatever your insight and however supported that insight by your decades of experience—rest assured your advice can still be easily dismissed, even by your defenders.