A pivotal time of change

Newly appointed federal privacy commissioner Philippe Dufresne says he was drawn to the job because of the stakes involved in protecting privacy at a time of great change, both on the technological and legislative fronts. Privacy, he says, affects not only everyone who uses technology but everyone who doesn't.

Dufresne, who previously served as a senior general counsel for the Canadian Human Rights Commission, hopes our laws in Canada will continue to adequately address and protect what he calls a fundamental right.

With new federal privacy legislation on the order paper, Dufresne says that the new rules must strike a balance between competing goals such as personal privacy, the public interest and fostering an innovative environment that allows Canadians to participate in the digital environment.

"I believe my background and experiences would be helpful to that role, because it would involve modernizing the complaints process, making sure that it was fair and effective," he says, pointing to his experience at the Human Rights Commission and as Law Clerk of the House of Commons. "It would involve communication and promotion of privacy, and I believe that is something I could do."

Dufresne went to law school at McGill in Montreal, studying both civil and common law, giving him a bilingual and bijural background.

"My career has been dedicated to the protection and promotion of the rights of Canadians, the rule of law, and Canada's institutions," Dufresne says.

During his 15 years as counsel with the CHRC, he argued several landmark cases before the Supreme Court of Canada, including the Bell Canada v Canadian Telephone Employee Association case on the institutional independence and impartiality of the Canadian Human Tribunal, a Canada Post case on pay equity principles and interpretation, the Vaid case on parliamentary privilege, Whatcott on freedom of expression, and  Moore on the issue of accommodation of persons with learning disabilities.

"So, a number of cases on balancing fundamental rights and other interests," Dufresne says, adding that his last matter with the Commission was the First Nations child welfare case which resulted in a settlement agreement with the federal government, which the Tribunal is finalizing.

Dufresne was the senior executive responsible for all of the investigation, mediation, audits, privacy, access to information, legal and litigation activities at the Commission, including being responsible for the claims process.

From there, Dufresne moved to the House of Commons to take on the role of Law Clerk and parliamentary counsel, where he described his office as the "Department of Justice for the legislative branch."

"We would provide all of the services that the DoJ provides to the executive branch to the House," Dufresne says. "Legal advice, drafting of bills for non-cabinet members, and generally advice on all areas of the law, including issues relating to parliamentary procedures. In that role, I was involved in a number of important issues in terms of the creation of the Parliamentary Protective Service in terms of security on the Hill while balancing the rights of members and making sure they have security that works."

Dufresne notes that it continues to be an ongoing discussion around security in the Parliamentary precinct, particularly in light of the illegal occupation of Wellington Street in front of the Hill in January and February of this year.

Dufresne frequently appeared in front of parliamentary committees to advise them on their rights and powers, as well as to review documents requested by those committees and to make redactions to protect privacy and national security.

When asked about the tendency in the previous Parliament for opposition members to demand that his office review and redact millions of documents instead of letting the public service handle the task as they normally would, Dufresne notes that it was a challenge. Still, it was a challenge for the public service as well.

"We did what we had to do to provide the services to the House, but it was certainly a challenging period, absolutely," Dufresne admits.

He was also very nearly responsible for representing the Speaker of the House of Commons before the Federal Court over the dispute with the government around releasing unredacted documents to a committee related to firings at the National Microbiology Lab in Winnipeg, ostensibly for security reasons. But the matter died when Parliament was dissolved for the 2021 election.

"I was involved with cases against the government when I was at the Human Rights Commission, and I've even had cases where I was against the House of Commons before I was Law Clerk in the Vaid case on parliamentary privilege," Dufresne says. "In this case, I was defending the rights of the Speaker of the House and the privileges of the House and its members, so we provided submissions to the court to the effect that the committees had the authority to do what they did, and ultimately the matter did not proceed further."

Balancing fundamental rights and imperatives, and promoting human rights internationally have been a constant in Dufresne's career. He spent almost a year at the department of foreign affairs as a legal officer responsible for international tribunals and criminal courts. He also taught at the law schools at Queen's University and the University of Ottawa in international human rights and criminal law, as well as appellate advocacy.

The other constant was Dufresne's involvement with the CBA. Over the years, he has taken an interest in its contributions as an organization that champions the rule of law for the legal profession and the country. To that end, he has served on the executive of the Quebec branch of the Association, as well as president of the Quebec constitutional law section. He was involved with the national constitutional law section, and served on the public sector lawyers' forum.

"I was president of the ICJ Canada, which is another organization responsible for the protection of the rule of law, and of the independence of judges," Dufresne says. "I've been an executive, so I understand the importance of applying the law and complying with laws, but I understand the challenges also that institutions face when they have to do that."

Returning to modernizing the federal private sector privacy regime, Dufresne says that new legislation is long overdue. "I look forward to it being studied and reviewed by Parliament," Dufresne says, pointing specifically to new powers of the Office of the Privacy Commissioner, the complaints process, and the authority to make orders and recommend fines. As he looks forward to advising Parliament, he'll also be carefully looking at other modernization features, such as de-identifying information and the onus being put on companies to better protect data from cyber-attacks.

"It's important that there be mechanisms where my office is advised, where individuals are advised, and we are involved in identifying the risks of harms to individuals," Dufresne says. "With the evolution of technology, this is more important to protect, to manage and to regulate."

The OPC has also undertaken several investigations in partnership with provincial commissioners — testament, Dufresne says, that privacy is a borderless challenge.

"This is why my office has been collaborating with counterparts in Canada certainly, but also internationally," Dufresne says. "It helps us identify the issues and ensure a commonality as to how a given investigation will proceed. That collaboration is helpful to regulators, but also industry and government because it allows them to have it dealt with in a consistent manner."

The office also has signed memorandums of understanding with counterparts that set out how they collaborate, but also takes the form of discussions with those counterparts, most recently in Newfoundland for the annual federal-provincial-territorial privacy and information commissioners' meeting. Says Dufresne: "I certainly look forward to continuing that collaboration both in Canada and internationally."