Information & Ethics Committee on Nov. 26th, 2009

[The Chair, Liberal, Paul Szabo]

Order. This is meeting number 40 of the Standing Committee on Access to Information, Privacy and Ethics.

Our order of the day is pursuant to Standing Order 108(2), a study on Privacy Act reform, and specifically the government response, the response of the Minister of Justice, to our 10th report on the so-called quick fixes recommendations, and, pursuant to that, the motion of Mrs. Simson in regard to a response. We were debating that motion. I believe the motion was circulated to your places, just to remind everybody of the wording.

We have a couple of people on the speakers' list.

Mr. Dechert, you're up.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

When we left off the other day, we were discussing the minister's response, and there were a couple of comments alleging that the minister's response was somehow insubstantial. Mr. Chair, I have to say that, from my reading of the letter, that's just not factually correct. This is an extremely substantive response. I can point out a number of things, but in particular I'd like to point out that at the bottom of page 2, in the last two full paragraphs there and continuing on to the top of page 3, the minister goes into some detail about the need for law enforcement and other security agencies to share information with our foreign partners. He points out that:

...there are other important government activities which require government institutions and agencies to share personal information, both inside and outside Canada. Such activities include ongoing or proposed government programs relating to establishing, modifying or enforcing family obligations, addressing cases of international parental child abduction and suspected forced marriage, and responding to sudden worldwide health threats.

Now, these are pretty substantial comments, where the minister is saying more work needs to be done on these areas of the suggestions that were made by the committee. He goes on to say:

Without efficient means of sharing personal information globally and domestically, these entities would be seriously hampered in their efforts to assist and protect Canada and its residents. Furthermore, efforts to provide greater domestic legislative support to our treaty obligations under international conventions could be seriously hampered.

For all these reasons, any change to the way in which Canada shares sensitive and important personal information must be carefully considered before any decision is made on possible amendments. Further consultation with government institutions and agencies that are responsible for the security as well as the health and welfare of Canadians would be required to ensure that the Privacy Act does not restrict the flexibility or pose additional barriers to information sharing.

That's extremely substantial. He's talking about protection of Canadian families, protection of children. For anyone to allege this response is dismissive or insubstantial is, frankly, ludicrous.

So there's no way, in my view, that this committee could in any good conscience make a motion worded that the committee is somehow profoundly disappointed with the response of this minister. This minister is taking his responsibilities for the protection of Canadians and children very seriously. For this committee to ignore these substantive comments that the minister has made in his letter, asking us to do further work to ensure that the Privacy Act allows appropriate government agencies to share the kind of information they need to share to protect children and protect the health and welfare of Canadians, that would be an egregious breach of this committee's public duty, in my opinion, Mr. Chair. For these reasons, I could not for a moment even contemplate supporting such a motion as this.

I think the minister has made some very clear statements about what further work needs to be done. I think that's the obligation of this committee, and we should all put our noses to the grindstone and do what our voters elected us and sent us here to do, and that is to review the Privacy Act in detail and come up with some very comprehensive, substantive changes—not just quick fixes, where we'll have the government running around making small changes to every piece of legislation in the combined Statutes of Canada on a yearly basis, but a thorough and proper job. We need to hear from witnesses on these issues that the minister has raised in his letter.

I'm actually quite pleased with this response. I think the minister has taken time to read through our committee report, examined our recommendations, and asked us, with respect, to do some further work to guide him and the government on real substantive changes to the Privacy Act that will take into account these very important obligations of the government to protect the health and welfare of the people of Canada and to protect children from things like parental child abduction and forced marriages. These are things I think we need to spend some considerable time examining.

I for one would like to see this committee bring back some further witnesses on some of these issues.

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Del Mastro, welcome back to the committee. You have the floor.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman.

First of all, I would begin by indicating that I would endorse Mr. Dechert's comments. I do believe this is a significant response from the minister, a minister for whom I have a great deal of respect, who's working hard to bring laws that will make our communities safer and stronger and that will protect Canadians. We've heard just this week about a number of strong bills brought by this minister, who is working hard within his duties as the justice minister.

I think we should review a couple of the things that are clearly indicated in the letter.

To begin with, the Government of Canada is committed to protecting Canadians' personal information, and it appreciates the significant work undertaken by the committee in the report. He didn't throw away any of the work or disregard any of the work that has been done in the committee. He's merely reminding us in this letter that the recommendations made by this committee are substantial and that they will require not just an amount of work, but they will significantly change not only the way government does its business, but also what is required of government.

The Privacy Act is part of a strong legislative, administrative, and constitutional framework that protects the privacy rights of Canadians. Privacy is important. We all, I think inherently, believe that governments should be open, that there needs to be accountability. That's why we brought in and passed the Federal Accountability Act. We all know that it brings an awful lot of responsibility on governments to Canadians. That was something that was necessary, because we know when we assumed government that Canadians had lost trust in government. We're working to build that back.

At the same time, it is important that we balance off the need for openness in government with an individual's personal right to privacy, frankly, when no lens into that privacy is required. The government has concluded that legislative changes recommended in the committee's report are very complex. They could have a serious impact on government operations and national and international information-sharing agreements. So it could seriously impact us on international agreements.

We have to keep these things in mind. We're all elected to represent our constituents, but we assume a responsibility of leadership. In assuming a role of leadership, you have to look at issues and say, wait a minute, international agreements are pretty important to Canada. We're a trading nation. We're a member of the G-8. We're a member of APEC. We're a member of the G-20. We work hard in Foreign Affairs. We're working hard to re-establish connections with foreign governments, whether that be on trade or multilateral or otherwise. We know we're involved in a multinational approach in Afghanistan right now, for example, where Canadians are performing admirably in the Canadian military. These agreements are important. The changes this committee is recommending could impact on those important international agreements.

What the minister is saying is, for this reason, extensive study and stakeholder consultation is required before significant changes are made to the Privacy Act. You don't ham-handedly start whacking away at a substantial piece of legislation without considering the effects of that. That's what this committee would do. That's irresponsible.

As we've indicated—

[The Chair, Liberal, Paul Szabo]

Order. I apologize. We're having a little interference in the translation booth. I'm told it's BlackBerrys near an open mike. It's getting some reverberation.

So if anybody is close to the mike, please don't....

Sorry to interrupt you. Carry on, please.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you.

As I was saying, extensive study and stakeholder consultation is required before we move forward with any recommended changes to the Privacy Act. We simply haven't done that. In my review of the work that's been done, and as the folks in this room will know, I was here for some of the witness testimony, not all.... But I think it's critically important that we are not derelict in our duties when we're talking about a substantive piece of legislation like the Privacy Act.

We've indicated that the government is going to continue to work with the Privacy Commissioner to ensure that the privacy of Canadians continues to be protected. That's important. It's a fundamental right in Canada. I think we believe in rights in Parliament. When you start looking at these things, it's important that we address them in such a fashion that we're acting responsibly. I guess that's what I would direct the committee....

I'm frankly encouraged by the response from the minister. I think the minister has pointed out a number of reasons why the committee should move forward with caution and with respect to the legislative framework that we have, and understand that the changes they're recommending could have significant unintended consequences. When you're in a position as we are, a responsible position of leadership in the nation, you always try to take into account potential unintended consequences and avert them.

Thank you, Mr. Chair.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Del Mastro.

Madam Block, please.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you very much, Mr. Chair.

I agree absolutely with everything my colleagues have said here this morning. What I would like to do is just remind us of the comments made by my colleague at the last meeting when this motion was first introduced. Those would have been made by Mr. Poilievre with regard to respecting a contrary point of view or opinion on the recommendations that we submitted to the minister in our report.

Rather than reacting to his suggestions, I believe what we need to do is take an hones, critical look at them and consider what the actions are that we need to take coming out of his suggestions. I think it would appear foolish on this committee's part to not take the suggestions seriously that we've heard from the minister and then come right back with a motion to introduce a whole new piece of legislation by March 2010.

As was indicated by my colleagues, there's work to be done. There's a review that we could do on the Privacy Act. Take a look at the suggestions, do the work that needs to be done, and, I guess in good faith, continue to work with the government. As it was pointed out, the Government of Canada is committed to protecting Canadians' personal information, and it appreciates the work, the significant work, that was undertaken by this committee in our report. I think we need to seriously look at the suggestions that were made by the minister.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mrs. Davidson, please.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you very much, Mr. Chair.

I also want to add my comments to those of my colleagues. I certainly think the way this motion reads in regard to expressing “profound disappointment” is totally out of line.

I really don't think that anybody could be expressing profound disappointment with the in-depth letter we received from the minister. I think the minister has given it a great deal of thought. I think he has put a great deal of information in this letter.

We know that the government is committed to protecting Canadians' personal information. We also know that the minister has stated that he appreciates all the work this committee has done in preparing its report.

He also goes on to say that there are a lot of other things that could be unintended consequences if in fact we follow through with what this motion is requiring. I don't think it behooves us as a committee to do that. I think our job here is to do the best job we can. By supporting this motion, I don't think we are doing that.

There are a great many things that are pointed out in the minister's letter, such as the fact that legislative changes recommended in the committee report could have serious impacts on other government operations, and not only on national information sharing, but on international information sharing.

These are extremely important issues. I think there are a lot of things that need to be looked at and studied before we start supporting a motion such as this.

The very fact that a lot of these things are called quick fixes certainly raises attention, in my mind. I think we've all been involved in different issues where we have seen that quick fixes, rather than in-depth consideration, have had negative unintended results. I don't think we want to do that with something as vitally important as this act. I think this act is at the very basis of Canadians' rights, and I think it deserves every bit of time we can spend on it. To support this motion is something I just cannot do.

[The Chair, Liberal, Paul Szabo]

Mr. Rickford, please.

[Greg Rickford, Conservative, Kenora, ON]

Thank you, Mr. Chair. I'm just going to add a few comments. I've been out on committee travel for a couple of weeks.

[The Chair, Liberal, Paul Szabo]

Welcome back from the north. I know you've been doing good work for another committee.

[Greg Rickford, Conservative, Kenora, ON]

It's kind of nice to be back here in southern Canada, but of course I love the north.

I just want to add a few more comments that may not have been raised to this point or emphasized to the extent that I'd like to see them emphasized.

It's my view that the Privacy Act is a strong piece of legislation. By his letter, I think the minister feels the same way. I'm concerned that we haven't spent enough time giving consideration for context here, that is, the impact the changes to this legislation would have on specific kinds of government operations that we should be concerned or preoccupied with, to the extent that the proposed amendments, as my colleague said, could have a serious impact on government operations subject to the act.

“Legislative amendments must be examined in the context of administrative alternatives,” the minister says in his letter, “such as enhanced guidance and training that can be equally effective to realizing continued improvements.”

Our work is incomplete here to that extent. I offer that up for the committee's consideration. I think it's worth pointing out that the report states that the committee supports only five of the Privacy Commissioner's twelve recommendations. It appears as though a more in-depth analysis and discussion at this more than capable committee is required, a broader study, if you will, of the Privacy Act, and any reform as needed. I think that's a fairly meritorious basis on which to consider a lengthier discussion on this. That's all I want to add for now.

[The Chair, Liberal, Paul Szabo]

I have no one else on the list, but I'd like to....

Madam Davidson, did you want a further intervention?

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Yes, thank you, Mr. Chair.

I've been asked by a member opposite, regarding one of the statements I made that the minister appreciates the work of this committee, where I got that information, and if in fact it was in the written letter that we received back. I don't believe those exact words are in this letter, but certainly the whole tone of the letter relates to that. He certainly recognizes the in-depth work that has been done, and he makes comment on this and makes suggestions whereby this committee, through the good work it has been doing, can move forward and continue to do good work.

I hope that clarifies my remarks.

[The Chair, Liberal, Paul Szabo]

Thank you. That's helpful.

The role of the chair sometimes is to see if we can find some consensus among the committee. You know that the last time I actually left the chair and spoke I expressed some concern about the relationship this committee has with the ministers who come before us. That's extremely important, because if you're going to be in an adversarial relationship, the prospect of getting any collaboration on legislative amendments is diminished. That's a problem. I know every now and then we like to exercise our muscles and maybe fire off a missile or two.

But there are two points, and I want to see whether the members want to comment on them.

First of all, this committee does not have the timeframe in terms of its workload—we get two meetings per week, with all the breaks, etc.—to do a look-see at either access or privacy, in its totality, with all the stakeholders. It would take some time, a very long time. The committee took a decision a long time ago that it wasn't practical for us to try to do the entire act, and the Privacy Commissioner had agreed and had come back to us saying that there were some things that might help the act to work a little bit better. There were some administrative-related issues, how you could streamline or make sure the administrative side was working reasonably well, and a couple of legislative things, which were consequential to some substantial amendments that were made to the PIPEDA act. There's no question that some of those were in an attempt to conform the principles under the PIPEDA with the Privacy Act itself. I don't know whether or not the committee is still of the view that we can or cannot do a full review, but one thing I do know is that we don't have the authorization or the mandate to develop a piece of legislation. We need direction from the minister to propose a piece of legislation to the House. That has to be kept in mind.

With that as background about how we got to where we are right now, I don't see in the minister's response to us a response to each and every recommendation that was made, and we only supported five of the ten. It would have been nice to have his response on the specific recommendations, on whether they had merit, because that moves the yardsticks forward. We've done some work at least on some five micro things. I would have liked to have seen, and I hope the members would have liked to have seen, at least his response as to whether we're going in the right direction on this or whether there are substantive reasons for or against, etc. That's helpful. If I were in a position to make a decision, I probably would like to see us go back to the minister with a letter and ask for a response to the report, not to the whole act; we didn't do the whole act. But I'd like the courtesy of a response to the specific recommendations that we supported and any comments he might have that amplify on the other ones that we included in the report—the Privacy Commissioner's recommendations, etc.

Maybe I've spurred a little interest in further discussion. I have four people on the list. We'll hear from them and then see where we are.

Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

I hear your comments, and I think there's some validity in those comments. I think the minister has given us a direction and permission—I mean request, I don't think we need permission—to do some further study. I think we can look at that, and I think we should have a discussion about how we can fulfill that request.

I think it is reasonable to ask the minister for a further response. I'd be happy to support that. I'm sure he has substantive things to say about each of the recommendations, and that could help us in our further work if we choose to do some further study on these important issues. I concur with your thought.

[The Chair, Liberal, Paul Szabo]

We'll have Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chair.

Just further to your comments, followed up by Mr. Dechert's, I think what you're proposing is much more reasonable than the motion before the committee. I'd remind members that the motion indicates that we report to the House profound disappointment with the response of the minister. That's pretty strong.

If we want to work with the minister, why not request of the minister that he give a more comprehensive response, a detailed response, indicating why the recommendations made by the committee may require more caution, more work, and more testimony. What are the concerns related to those recommendations? I think it's entirely reasonable for the committee to go back and say that we need more information, because we're not sure how to proceed, and that we don't understand why these five recommendations are being dismissed and why he thinks we should do more work before he stands by them, frankly. I think that's entirely reasonable.

Second, perhaps by doing more work, we'll determine that we don't need a new Privacy Act. Maybe there are amendments to the Act the committee wants to recommend. I think requesting a more comprehensive letter from the minister would be a reasonable and rational approach, including citing why members of the committee—not me, but some members of the committee—feel that the response of the minister left them looking for more.

I think that's entirely reasonable. I think, and I agree with the chair, that using the words “profound disappointment” and bringing that to the House wouldn't necessarily foster good relationships between an individual and the Minister of Justice, whom I have a great deal of respect for, and this committee. I think we should be mindful of that. I would agree with the chair.

Frankly, if the minister comes back with a response that is more comprehensive, I hope the committee would take that into account. If you still have concerns about the response of the minister, then perhaps you would move forward with a motion. I would never support a motion that reads like Mrs. Simson's. But perhaps at that point, after receiving a letter that would indicate why the Minister of Justice is concerned about the recommendations made by the committee, you could consider your options.

Thank you.

[The Chair, Liberal, Paul Szabo]

We'll go to Mrs. Simson, please.

[Michelle Simson, Liberal, Scarborough Southwest, ON]

Thank you, Chair. I really appreciated your intervention with respect to the suggestion that perhaps we'd get a more fulsome response to each and every point that was brought up.

My concern with this particular letter is that nowhere has the minister said he'd like the committee to do any more work. His last line is “We assure you that we will continue to work”—“we” meaning his ministry—“closely with the Office of the Privacy Commissioner to ensure that the privacy of Canadians continues to be protected.”

The way I read this letter is that he was putting forth his viewpoint. There's no question that there are some points that are well taken, but at no time in this letter are we being encouraged, unlike in the letter we got on the access to information. The access to information letter encouraged the committee to do more work. When I read this, I understood that he was trying to tell me, as a member of the committee, how he viewed this. That's fair enough. We're entitled to know.

My concern is that it will take a long time to enact new legislation, as the chair pointed out. For instance, the Access to Information Act has been under study and remains substantially unchanged for 20 years. There has been study after study undertaken, and nothing has changed. I think Canadians deserve better than that. I think they deserve legislation that protects their rights.

We've seen a lot of legislation go through in the past few days and weeks—crime bills—and that's all well and good. But I'd like to see some attention paid to rights, to statutes that really protect Canadians' rights, gives them access to information, protects their privacy.

I think the commissioner, when she put forward the 12 quick fixes...I mean, if there was an issue about calling it quick fixes, it's not unlike triage, where you have to maybe do a little bit of work before you can get down to the operation. If you don't stop the bleeding, the patient dies.

In any event, based on what the chair has mentioned, and having given it some thought.... By the way, !profound disappointment” mirrors exactly what this committee said about the last response on access to information. I read it the same way as the access to information letter, because essentially we got whole paragraphs that were taken from one letter and put in the other. When that happens, I figure it's almost like a form letter.

In any event, I would be prepared to table my motion for the time being and perhaps pursue a letter to the minister requesting a more detailed response to each and every issue. I'd like to hear from him what he thinks would be the quickest way to get both pieces of legislation--both are over a quarter of a century old--updated to protect Canadians.

Thank you.

[The Chair, Liberal, Paul Szabo]

Thank you.

I have Mr. Wrzesnewskyj, Mr. Rickford, Mr. Dechert, and Madam Freeman.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

I'd like to thank you for your suggestion, because I believe it's a constructive way of going forward, and I hope it will provide us with an opportunity to see what the minister's thinking is on these very important recommendations.

I applaud Mr. Del Mastro saying this would be a constructive way for the minister to approach this very serious work we've done in our committee. In fact, I'd like to remind the committee of points the minister made in his appearance before us. It appears he made those very same points to the committee over and over, so I'd just like to make sure we remind ourselves of this.

In his opening statement--and these will all be quotes--one of the things the minister said was: “As the Minister of Justice, I have confidence that the government would benefit from the committee's views on access reform. It is your work as parliamentarians that will be important in shaping this reform.”

He hasn't qualified that only in this particular area...he seems to indicate goodwill for the work we will provide him with in terms of our report and recommendations. Then further on he listed some of Mr. Marleau's proposals. Mr. Marleau's fourth proposal...he went through the list, and those items are cabinet confidences, universal access, etc. He addressed a number of the individual reforms in his opening statement.

So obviously he is familiar with what some of those recommendations were. He was willing to address them in his opening statement back in May, so let's provide an opportunity, once we've done our work providing the exact wording of our recommendations, for him to be more fulsome than he was back in May, because now he knows exactly what we're thinking and he has asked us to provide this to him.

In response to questions that I put to him, he said, “Again, Mr. Chair, I'm pleased to hear any recommendations or any analysis that is made.”

On cabinet confidences, “I would be pleased to have a look at this issue.”

“I'm here to tell you that if you would again take up the challenge”--he's telling us to take up the challenge of these particular issues--“I would be pleased to see whatever you have to say.”

Further on, when I questioned him, he said, “The committee can pursue anything it wants.” He hasn't limited us to just one particular area. “We want your input on these things.” Once again, he wants our input.

Responding to Mr. Nadeau he said, “That being said, you have the recommendations of Mr. Marleau”--he references Mr. Marleau's recommendations--“the present commissioner. I would be very pleased to hear your comments and those of your fellow committee members.” That's exactly what we've done.

“Again, any time you're prepared to come forward with a report addressing the different recommendations he has made”--“he” being Mr. Marleau--“I would certainly be pleased to hear from you.”

It's all there. Then further on he says to Mr. Nadeau, “Again, I would like to have your comments on the recommendations of Monsieur Marleau. You have them before you, and I'd be very pleased to have this committee”--and then I guess he got cut off. “Again, I welcome your input.” It goes on and on.

Mr. Siksay asked him a few questions, and once again he stated, “Again, I always look for input. As I was saying to Monsieur Nadeau and others, any input you want to give will certainly be welcomed by me.”

“I try to be very careful, as you know, on these things, I really do. I welcome any information, any study you can provide on this. Again, I am very open to.... Every bit of discussion that you can have will take place, and I would like to have your recommendations.”

Responding to Ms. Block he said, “This is why I was saying to a couple of your colleagues across the table”--meaning on this side--“that I'd be very pleased and I think it would be appropriate--and I think it's the right thing to do--to get your input on these”, meaning those recommendations by Mr. Marleau.

Ms. Block went on to ask the minister, “In his special report, the Information Commissioner states that 'there has been full opportunity for debate, critique and persuasion' and that there are no knowledge gaps. But you are suggesting to us today to undertake more consultation. Could you please explain to us why you believe that more work needs to be done?” The minister responded: “I think some of the recommendations would have some very profound effects on the way business is done in this country, and it's not just with respect to cabinet ministers.... The proposals that you have seen...are very wide-ranging. This is why I would ask that you have some input on this.'”

Then I guess finishing off, the minister, in his last set of questions and answers stated, “I think it's only fair and only reasonable to take into consideration the recommendations of the present commissioner.”

We've done it. We spent a great deal of time working on this. We've provided the report.

The minister has said that it's only fair, it's only reasonable. Over and over again he said he's looking forward to hearing our recommendations. Well, let's stress to the minister that we're now looking forward to his response. We're showing the same goodwill toward his response to all of those recommendations that we've worked so hard on.

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Rickford.