Industry Committee on April 17th, 2024

[Some hon. members]

Oh, oh!

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

All right.

Under the definition in CPC-3, “lawful authority” addresses proposed section 33.

What does proposed section 33 state?

[Mark Schaan]

It's called “Communication with next of kin or authorized representative”.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

It states:

An organization may disclose an individual's personal information without their knowledge or consent to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that the disclosure is requested for the purpose of communicating with the next of kin or authorized representative of an injured, ill or deceased individual.

Can you explain that for us, Ms. Angus?

[Runa Angus]

Just so I understand the question—

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

What's the significance of proposed section 33? CPC-3 includes “other than section 33”, and the amendment put forward by the government side excludes proposed section 33.

[Runa Angus]

It's just for the purpose of communicating with the next of kin, in case an individual is injured, ill or deceased. They still have to show their lawful authority for doing that.

The significance is this: It doesn't actually grant lawful authority. It just says you need lawful authority to do it.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Say, God forbid, my spouse passed away. She's on all of our bills, like Fortis, Telus, etc. Would it grant Telus the ability to communicate or meet with me regarding the information on my wife's account?

[Runa Angus]

It would grant Telus, in your example, the right to communicate with law enforcement so they could communicate with you.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

In our definition, it's “other than section 33”, so lawful authority was exempted. Under the government's proposed amendment, it wouldn't be exempted anymore.

[Runa Angus]

I think what was asked for was the OPC's recommendation. The OPC asked for a definition with respect to proposed section 44. That is the reason for proposed section 44.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

The OPC only discussed proposed section 44. Okay.

Just for clarity, let's go over the same thing in proposed section 43.

[Mark Schaan]

It reads:

Administering law—request of government institution

An organization may disclose an individual's personal information without their knowledge or consent to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that the disclosure is requested for the purpose of administering federal or provincial law.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Can you give me a real-world example of how that would apply and why the amendment didn't include that? Is it for the same reason you just noted for proposed section 33?

[Runa Angus]

It is the same reason, but this is for administering law. Obviously, if something happens, there is administrative work that institutions need to do, whether that's producing a death certificate or other documents. That's what proposed section 43 is for.

Again, I will note that the Privacy Commissioner did not ask for a definition of “lawful authority” for these, but the same definition could be used for proposed sections 33, 43 and 44. I think the privacy concern was very much with proposed section 44, because it's about law enforcement, as opposed to communicating with the next of kin or administrative work.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Okay. On that point, proposed subsection 47(1) talks about “national security” and “defence”. Do we really want to exclude that one, then?

[Runa Angus]

The definition wouldn't exclude it. The definition would apply to every place in the act where “lawful authority” is mentioned.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Our amendment includes proposed subsection 47(1). The new amendment doesn't. I'm trying to parse out the difference between the two. That's what I'm trying to get at.

[Mark Schaan]

What proposed section 44 does in the government amendment is to say that for law enforcement in these particular zones, you can't rely on the CPPA itself for a definition of lawful authority. When we're suggesting that you can rely on a reasonable law to be able to have lawful access as a function of law enforcement, that means you can't come back to proposed section 44, which says that law enforcement does these things. You essentially need to exempt proposed section 44 from “reasonable law” under the Spencer test because it's self-referential.

I think the CPC amendment suggests that you can't rely on it in zones other than proposed section 44, and I think the view is that the reasonable law portion is “Law enforcement—request of government institution” in proposed section 44.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

I just think that “national security” and “defence” should have the same applicability as proposed section 44. That's in proposed subsection 47(1), “National security, defence or international affairs”. That would be my concern with the new amendment, Mr. Turnbull. That's just my opinion.

Thank you, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Vis.

Mr. Perkins.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I won't be long. It's just a follow-up to MP Vis.

In our amendment, we thought there were several circumstances beyond proposed section 44 where this definition wasn't needed. That seems almost common sense: talking to a relative or the exemption for national defence. Yes, it's true that proposed sections 33 and 43 and proposed subsection 47(1) were added in addition to what the Privacy Commissioner was looking for in proposed section 44, but I haven't really heard a good reason why MP Turnbull's coming amendment doesn't include those sections.

Are we saying that the level of police requirement still needs to be in place for proposed sections 33 and 34 and proposed subsection 47(1)?

[Runa Angus]

From my perspective, these are not sections that grant lawful authority. If that clarity is needed, I don't see any legal issue with that. I think what needs to be clear is that proposed sections 44, 43 and 33 and proposed subsection 47(1) don't actually grant authority. They are not reasonable laws for the purpose of the definition.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I'm not sure I understand that.

Proposed section 44 grants.... The next coming amendment proposes that we need to say that lawful authority other than proposed section 44 applies. Basically, we're suggesting that there are a couple of other pro forma sections, national security being one of them, that might be considered. Obviously, we can have a debate on that. That's what we're having.

This goes a little further than 44, but are you telling me that the government isn't concerned about the issue around lawful authority in 33, 43 or 47(1) on national security, and that they have to go through that process in that case?

[Samir Chhabra, Director General, Marketplace Framework Policy Branch, Department of Industry]

For greater certainty here, I think the privacy commissioners, both the previous and the current, have focused on section 44, because there's a potential.... Our assessment of the approach that's been taken is that it would not cause any further risk or issue if proposed sections 33, 43 and 44 and proposed subsection 47(1) were named.

If the committee chose to do that for greater certainty, we don't think there's a significant issue there, if that's the question that's being posed.