Bill S-4 (Historical)

Digital Privacy Act

An Act to amend the Personal Information Protection and Electronic Documents Act and to make a consequential amendment to another Act

This enactment amends the Personal Information Protection and Electronic Documents Act to, among other things,
(a) specify the elements of valid consent for the collection, use or disclosure of personal information;
(b) permit the disclosure of personal information without the knowledge or consent of an individual for the purposes of
(i) identifying an injured, ill or deceased individual and communicating with their next of kin,
(ii) preventing, detecting or suppressing fraud, or
(iii) protecting victims of financial abuse;
(c) permit organizations, for certain purposes, to collect, use and disclose, without the knowledge or consent of an individual, personal information
(i) contained in witness statements related to insurance claims, or
(ii) produced by the individual in the course of their employment, business or profession;
(d) permit organizations, for certain purposes, to use and disclose, without the knowledge or consent of an individual, personal information related to prospective or completed business transactions;
(e) permit federal works, undertakings and businesses to collect, use and disclose personal information, without the knowledge or consent of an individual, to establish, manage or terminate their employment relationships with the individual;
(f) require organizations to notify certain individuals and organizations of certain breaches of security safeguards that create a real risk of significant harm and to report them to the Privacy Commissioner;
(g) require organizations to keep and maintain a record of every breach of security safeguards involving personal information under their control;
(h) create offences in relation to the contravention of certain obligations respecting breaches of security safeguards;
(i) extend the period within which a complainant may apply to the Federal Court for a hearing on matters related to their complaint;
(j) provide that the Privacy Commissioner may, in certain circumstances, enter into a compliance agreement with an organization to ensure compliance with Part 1 of the Act; and
(k) modify the information that the Privacy Commissioner may make public if he or she considers that it is in the public interest to do so.

Motions in Amendment

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Mr. Speaker, let us start by saying that the hon. member was not on committee and was never at any of the hearings, so I reject the vast majority of her question.

Regarding this idea that the committee did not hear from witnesses, the fact of the matter is that for almost every one of the suggested amendments, there was a group of witnesses on one side saying that we should be tougher and another group of witnesses on the other side saying that it should be easier. We struck a balance somewhere in between. Certainly we had the opportunity to hear a variety of witnesses across the board.

When it came to hearing amendments, there were several amendments moved by the opposition. Someone mentioned 18, but I cannot remember what the number was. Many of them were redundant, in that many of them were the same amendment moved in different areas. In several cases, I remember that the member's own party moved amendments that did not make any sense and had to withdraw those amendments before they were even debated at committee.

Certainly we had the opportunity to hear the experts from Industry Canada weigh in on the legislation and give very well-reasoned arguments about why the legislation was the way it was. I think we came forward with a piece of legislation that would make PIPEDA stronger than it has ever been.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, surely the member would recognize that Bill S-4 was put in a unique situation in that it went to committee before it received second reading, thereby creating what turned out to be a false expectation that the government was open to making changes. In reality, all the amendments brought forward were defeated. It was almost like a normal routine of other pieces of legislation that have just gone through the normal process at second reading.

My question to the member is this: why did he feel it was important to isolate this piece of legislation by bringing it to committee before it completed second reading and then sending it to committee stage? Why change the normal procedure, given that the government had no intention of making amendments?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Mr. Speaker, the hon. member, who has said a few words in the House on a few different topics over time, was not actually at committee, and I do not think he could actually name one of the amendments that were moved.

We heard the amendments. We had a good discussion at committee. We heard the suggested amendments, and as a government we decided that in each case the bill was better if we left it the way it was.

I would point out that not every one of those amendments was defeated by only our side voting that way, and nobody else. During the consideration of those amendments, there were often other members who agreed with our side that the amendment was not the way to go.

Again, our legislation will be stronger when this bill passes, and I urge all members of all parties to support it.

[The Deputy Speaker, Joe Comartin]

Order. It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Louis-Hébert, Public Works and Government Services; and the hon. member for Surrey North, Public Safety.

Resuming debate, the hon. member for York West.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I am pleased to have an opportunity to speak to Bill S-4. I will be sharing my time with the fabulous member for Winnipeg North.

I am pleased that we are discussing this bill, but again, unfortunately, it is the same Conservative divisive policy of “You are either with us or you are against us.” Members from all sides wanted to see some improvements to Bill S-4, but unfortunately the bill came from the Senate, and any changes were going to disrupt the process of trying to get legislation through very quickly, which is typical, of course, of the government's plan. I can only say that I was disappointed and that I have to stand and say that I have recommended that the Liberal Party vote against Bill S-4.

It is legislation that could have given our digital privacy laws the shot in the arm they so desperately need, and Liberals would have welcomed it if we had had the opportunity to make it better. That was certainly the intention from the Liberal Party's perspective.

As Canadians are increasingly turning to online commerce, education, banking, recreation, and communication platforms, our laws must keep pace in order to protect all of us. Sadly, the government has a wilful ignorance and reckless disregard for reason on such matters, and Bill S-4 proves it again very clearly.

Information oversight and management are not areas that the government has excelled in, so forgive me if my confidence is shaken a bit. I simply cannot accept without proof the government's word that it is actually protecting consumers' interests.

Of course, the way the government looks at personal information protection and privacy has already been subject to a Supreme Court ruling, and once again the court gave the government another failing grade.

This should come as no surprise to anybody who is paying attention to politics in Canada right now. We all remember when the government lost a hard drive that held the social insurance numbers, medical records, birthdates, education levels, and occupations of 5,000 Canadians. In addition, we remember when the interim privacy commissioner revealed that telecommunication companies receive an average of 1.2 million requests from federal enforcement bodies for private customer information every year. That is approximately 3,300 requests every single day for Canadians' personal information.

Perhaps I should also mention the headline that appeared in The Hill Times this week. It warned that Canada's access to information regime is slipping into—guess what—irrelevance. The article went on to reveal that the Centre for Law and Democracy ranks our ATI regime 56th out of 89 countries. I repeat, we are 56th out of 89 countries. We are really way up there, are we not?

The article also said that in September 2014, Canadian Journalists for Free Expression noted that ATI “is severely failing to meet its minimum requirements, let alone adequately serve the population’s needs.”

While I understand that access to information laws are different from digital privacy laws, these examples all point to a government that does not understand information management, yet refuses to seriously consult or listen to the experts on the matter who came before committee. The government stubbornly refused to listen to experts such as Professor Michael Geist and many others who appeared, including lawyers and professors, who said it was a good piece of legislation but that it could be better.

The intent, certainly on the Liberal side, was to try to make it better, but as everyone here knows, Bill S-4 was referred to the committee after first reading, as my colleague mentioned.

This is typically done for procedural reasons, and because it more readily allows for substantive amendments, the referral traditionally indicates the government's willingness to compromise. It was really very unusual for the government to do this, but it was very welcome. We thought that maybe the government had seen the light and that together we could improve this important piece of legislation, so we gladly supported it after first reading. We were preparing to move amendments, work together with the government, and make it a good, strong bill. It was on this implied promise that the Liberal caucus was prepared to support Bill S-4.

Committee members heard from several experts, including the privacy commissioner, IBC, the Canadian Bar Association, Professor Michael Geist and so many more. We took their counsel to heart in those four meetings.

After the hearings concluded, over 42 substantive amendments were presented in good faith, most taken directly from expert testimony. Those 42 amendments came from the three opposition parties in the House.

Let me give an example. I introduced an amendment that was specifically proposed by several witnesses and contributed to the committee study, including the Insurance Bureau of Canada. The amendment dealt with the reporting threshold for privacy breaches. My amendment would have required the reporting of any unlawful breach of personal information security so long as the said breach presented a significant threat of harm to an individual. That same amendment also clarified what a company needed to do to remedy the breach, including a requirement to warn victims that their information was lost. That sounds pretty basic. If my credit card was compromised or my personal information was lost, I would want to know that.

However, the government was unmoved. In just one short meeting, government members defeated every one of those 42 amendments without any explanation or defence. Some of them were out of date already by the time other ones had been defeated. There was no explanation or no big defence. It was simply the silent majority on the other side of the House voted them all down, just like they do all the time at all committees.

Despite warnings of overly broad, cumbersome and nebulous provisions within Bill S-4, the Conservatives took less than three minutes each to consider, discount and defeat everything that the experts had warned us about. As a result, Bill S-4 remains flawed. It has never been fully considered and should not be accepted or passed without a true and unbiased evaluation.

To be clear, there are positive elements to Bill S-4. For example, the legislation grants the Privacy Commissioner the ability to enter into enforceable compliance agreements with companies that have likely breached the act. This provides a regulatory remedy for certain actions and is a positive development. Public Safety Canada said that the bill would help to protect the security and privacy of Canadians by limiting the number of police and security officials who could request subscriber data and applying new requirements for recording, reporting and auditing those requests.

These may be good things, but several independent and credible sources outside of government expressed their concerns with Bill S-4. For example, many warned that metadata could be used to track specific individuals on the Internet and when in the wrong hands, that tracking could represent a serious threat to personal privacy. Bill S-4 utilizes a similar approach, and this is an issue of tremendous concern for those of us on this side of the House.

I want to ensure that law enforcement officials have the information they need to keep us all safe, but a blank cheque approach is inappropriate and promises limited success. We could do better if the government would just listen to the experts and then work with the opposition.

In broad strokes, Bill S-4 represents a shift in the way we deal with digital privacy. Privacy laws have traditionally outlined the rules and procedures needed to protect information and personal data, but in this case the legislation sets up circumstances under which that material could be released.

In a world where crimes involving personal data theft, identity fraud and online stalking are on the rise, protecting data is crucial. Data is not just information; it is a commodity. It is power and it is a back door into our private lives. The Liberals are deeply concerned that the government's commitment to safeguarding personal information and privacy of Canadians is less than absolute with Bill S-4.

Whether driven by Conservative ignorance or intent, Canada is clearly on the cusp of a paradigm shift with respect to privacy laws, and the Liberals are worried about the consequences of Conservative insolence.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I would like to thank my Liberal colleague for her speech.

With respect to the meetings of the committee that studied this bill, we recognized that it was very difficult to get amendments adopted and make corrections to the bill. As my colleague the digital issues critic put it so well, this bill is flawed. The government and the Standing Committee on Industry, Science and Technology did not listen carefully.

I would like her to expand on what she considers to be one of the most problematic flaws in this bill and tell us how we can fix it.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, part of the reason why we on this side of the House supported the bill going to committee after first reading was so something as important as it could be improved by working together to ensure that we were better protecting Canadians. The flaws were there. However, the unfortunate part was that it was like all of our committees. They do not function. We can go and put in our hours, but the government has the majority. The Conservatives do exactly what they want. We sit there, we contribute, we try to make sense of some of these things, but it is a major waste of time.

I have been here for 16 years. Committees used to function very much in a non-partisan way. There was give and take, and people listened so we could make the legislation better.

I continue to have a major disappointment when I see the House not working that way. I cannot wait until we have an election and hopefully we can straighten things out so we can get back to doing the kind of work Canadians expect us to do at committee level.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Mr. Speaker, I take the member's point about amendments really being dead on arrival in committee these days. It is getting to the point where the days when amendments from opposition parties were accepted in committee are fast becoming part of Canadian folklore. They are so far back in the past.

I have a question about one of the amendments the hon. member mentioned. I would like her to expand a bit upon it. That is the amendment that would have required credit card companies to divulge some information when a client's card was defrauded and so forth. I am not sure exactly what information and that is why I am asking.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, let me use the telecommunications companies as an example. There were thousands of times that telecommunications companies were giving access to personal information; that is our information and the information of many others.

My privacy and that of other Canadians needs to be protected. It should not be randomly given out because somebody asks for it. On anything to do with fraud, Canadians should be aware that their credit cards have been compromised. Individuals should be notified of that fact so they can monitor it themselves, not just assume that the credit card company will be on alert to protect their interests. Far too often the consumers are not notified of those kinds of things.

Again, on the issue of committee, my colleague has been here for quite a long time. He is knows how parliamentary committees are supposed to work, and have always worked. When the government came into power, it decided it was not interested in committee work anymore. It did what it had to do to fill in time to go through the basic process.

Bill S-4 came in through the Senate. The bill should have come in through the House, and had the proper work done through a member of Parliament or minister. That is a proper way to deal with legislation. However, bringing it in through the Senate is the back door way of getting things done, and the government has used that approach several times to get through what it wants done.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I thank the member for York West for allowing me the opportunity to share a few thoughts on Bill S-4.

I am used to the member talking very passionately on a wide variety of issues, particularly regarding our seniors. She is a very strong advocate for our pension programs and so forth. It is also very nice to see that she takes the same sort of attitude in wanting to hold the government accountable on an issue that is important to seniors and all Canadians, which is the digital privacy laws, especially since the Internet and the use of it has exploded over the last decade or so.

When we get advancements in technology and witness it first hand, to the degree in which we have, one would expect the government to have an interest in wanting to ensure we stay on top of the issues related to those advancements. However, the government has not done that.

In fact, it is interesting that we are today debating Bill S-4, which is an important issue. If we were to consult our constituents, I think we would hear genuine concern with respect to the type of information that is on the Internet and just how easy it is for a breach of that security, ultimately causing a great deal of harm to individuals. In a macro situation, it could have a severe impact on the economy.

However, we have an important issue in which the Prime Minister has made the determination that he wants to give the bill that final push as we start to wind down after four years of inaction on the file. Now the Prime Minister, with four and a half weeks of sitting days left, wants to rush the bill through the process and pass into law.

As has been pointed out, we had a different situation in the process with Bill S-4. Not only did it come through the Senate, but it was also stopped before second reading and sent to committee for review. From what I understand, that is very rarely done. The reason it is done is to accommodate significant potential changes to the legislation. That tells me the government, the minister responsible for bringing this legislation before us today, understood there were issues related to the legislation that needed to be dealt with before it completed second reading. I am convinced it was the reason the government took the initiative to take the bill out of the normal process and bring it to a committee first.

I suspect the Independent members, the Liberals and the New Democrats believed the government would be open to amendments. That was kind of the impression that was given to us. However, something happened between the decision to bring the bill to committee and have it voted on in committee with respect to the amendments. This is where the Prime Minister's Office interjected.

Through his office, we found that the Prime Minister was not interested in amendments, because all that would do would prolong the amount of debate, possibly, by having it go back to the Senate. He was more interested in being able to make the statement that the Conservatives had made some changes to the law, even though the legislation was flawed.

I want to focus some attention on the fact that we have very important consumer-type legislation related to something about which Canadians in all regions of our country are concerned, and that is the issue of privacy and protecting it.

The amount of purchasing and other items taking place economically on the Internet is increasing every year. The government wants to try to score a political point by saying it is trying to address the issue. In reality, nothing could be further from the truth. If it were really important to the government, I would suggest that Conservatives would likely have brought it in before the last month or two of this session and that the Prime Minister's Office would have allowed for amendments at the committee stage. Why would Conservatives oppose amendments that would improve the legislation? Unless maybe the government did not want the opposition to support the legislation. There is a lot of merit to that. We have seen that in other pieces of legislation: bring in an idea, give it a label, tell Canadians they are concerned about something, but then leave serious flaws in the legislation to try to maybe get the opposition party offside. Who knows?

What I do know is that there are many deficiencies within the legislation, as has been pointed out by the Liberal Party critic or others, at committee. There are serious flaws in the legislation and there were, I believe, 40-plus amendments that were being proposed. Not one of those amendments passed. The government cannot say that it was political parties that were doing the posturing on it. Many of the amendments, including amendments brought forward by the Liberal Party, were taken from experts at committee who made presentations, some credible organizations, government agencies of sorts that came before the committee.

The government made the decision that it was not going to accept any amendments. What surprises me is that if the Prime Minister's Office had been more clear with the minister responsible for the legislation, the bill could have gone through the normal process. The normal process is not that much better. Ever since the Conservative/Reform government received a majority it had a different attitude in terms of how democracy works here inside the chamber.

I have heard about many pieces of legislation, not only this one, where opposition parties or individual members of Parliament would bring forward amendments and the government consistently said “no” and defeated amendments. The government makes a mockery of the system by not allowing members from all sides of the House to move amendments that would improve the legislation.

Subscriber data requests are very important. People are concerned about that. We know that there are victims who need to be warned when there are breaches of security. Personal identity theft is very real. It is happening far too often. The amount of fraud out there continues to grow and is becoming a serious problem.

We need to protect the privacy of Canadians, and this bill would not go anywhere near far enough to address the many concerns that were brought up, whether at committee or by individual members.

The issues are important. The government has dropped the ball. I would suggest that if the Conservatives really wanted to make a difference, they would allow amendments to pass. In essence, that would provide assurance to Canadians that the government truly does care and that it is more than Conservative spin that it is interested in, but there is no sign of that, unfortunately.

[Robert Chisholm, NDP, Dartmouth—Cole Harbour, NS]

Mr. Speaker, I listened with some interest to the member for Winnipeg North as he intervened on this bill. I was certainly convinced by his arguments. He talked about the fact that there were many witnesses who raised significant concerns about this legislation. He talked about the dangers of not being careful and how we could deal with these privacy issues on the Internet.

Given his strong feelings, I can understand why he would not support this piece of legislation, but I have to tell him that I was a bit flummoxed when I considered the Liberals' response and the response of this member to Bill C-51. We heard the same arguments. The government would not listen to amendments. It would not listen to the experts. The impact of Bill C-51 was going to be extraordinarily significant, but in that case, they turned around and voted for it.

In this case, there are similar arguments and similar positions and they are voting against it. I wonder if the member for Winnipeg North would try to square that circle for me?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I will try to make it relevant to this particular bill. I appreciate the question from the member. Maybe I can assist him by indicating that in debating Bill C-51, because I did get the opportunity to talk about it, we needed to recognize that there was some value to the passage of the bill in the context of time. Through that value, we could provide security for Canadians.

We did have concerns, and we still have concerns regarding Bill C-51. I would suggest that the member need only reflect on what the leader of the NDP and even some of his colleagues said inside the chamber, that if they were in government, they would not repeal the legislation that Bill C-51 brought in, but rather make changes to it. They recognized that there was some value to Bill C-51.

That is not necessarily the same case here. It is nowhere near as time sensitive, and there is no reason why a more all-encompassing piece of legislation dealing with the issues of online commerce and privacy could not be addressed by having a more thorough piece of legislation. If I had more time—

[The Deputy Speaker, Joe Comartin]

Questions and comments, the hon. member for Beauharnois—Salaberry.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I would like to ask a question.

Bill S-4 has several flaws with respect to the protection of personal information. For one thing, it would lead to a reduction in the number of complaints and reports of breaches because the complaints made would be managed by the companies themselves. It would be up to the companies that receive the complaints to determine if they are serious enough to be addressed.

John Lawford, the executive director and general counsel of the Public Interest Advocacy Centre, says that this will incentivize not reporting data breaches by leaving it up to the organization to determine whether the breach creates a real risk. That is a real conflict of interest.

I am wondering what the member for Winnipeg North thinks about that. Was the committee told that the fact that this bill reportedly protects privacy when it actually does the opposite is a serious concern?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is important to recognize that victims need to be warned if there has been a breach. That is one of the reasons why the member for York West, on behalf of the Liberal Party, moved amendments specifically dealing with the issue of a threshold and how important it is that companies recognize their responsibility and their role in informing consumers and victims once there has been a breach.

Legislation that would have encouraged this would have gone over a whole lot better, as opposed to what we have here today. That is one of the reasons why, I would suggest, the government was negligent by not accepting a number of the amendments, not just the one I just cited from the Liberal Party critic. There were many other amendments that also could have been passed, I suspect.