Bill C-2 (39th Parliament, 1st Session) Committee on May 30th, 2006

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Commissioner Stoddart, for being with us and for re-establishing, in such short order, the integrity of the Office of the Privacy Commissioner.

Perhaps I could just ask a general question about the type of office you hold--that is, your view of its proper role between both the executive and Parliament, where you really are an extension of members of Parliament in order to assist them to hold the executive of government accountable.

Coming from that, it would seem to me that, over time, you would identify trends, perhaps of particular types of complaints or difficulties that you would recommend be altered in terms of the management of public administration. Therefore, although concerns, problems, and mistakes won't disappear entirely, over time they should start to come in line with the best management practices, as far as your office or any of the other independent offices are designed to meet.

Is that the experience in your looking at the history of the privacy office and your own individual relationship with it for the last two years? Are we creating, with your office being one of the agents of change, a change in management practices towards greater responsibility? Or do you feel that your office is simply there as an ongoing, steady-volume recipient of complaints that aren't really being corrected in a remedial way?

[Jennifer Stoddart]

If I understand your question correctly, honourable member, you're talking about two things: about management and accountability—administrative issues—as well as issues of enforcement of the legislation and amendments to the legislation.

I would say from my own experience as Privacy Commissioner that I was in a sense both fortunate and unfortunate to come in at a very critical time in the role of this office and also in the historic role of agents or officers of Parliament, however one chooses to qualify them.

I'd emphasize that this is a reciprocal relationship between Parliament and its officers or agents, and the importance one assigns to them and the interest Parliament takes in their doings can vary widely—and has varied widely, certainly, throughout the history of my office.

I'm fortunate to be Privacy Commissioner now, at a time when, through various issues—both the emerging issue of privacy and the unfortunate events of 2003, in which Parliament was directly involved—Parliament is now very much following the developments in my office. This in turn—it's a synergetic relationship—I think gives me a lot more credibility when I talk about Privacy Act reform, or this fall Parliament wouldn't be looking at a five-year review of PIPEDA.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I agree. Thank you.

[The Chair, Conservative, David Tilson]

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, Madam Commissioner. I'm very grateful for your testimony, and it seems very clear to me on page 4, when you talk about CBC, Atomic Energy of Canada, and Via Rail.

What we hear in the other place, over there in the Commons, is that somehow in the other part of this omnibus bill—the access provisions in particular—something was done to protect CBC and the sources. But what's clear here is that the extraction of CBC in particular from PIPEDA gives them, in your words, a lower standard of privacy protection than the federally regulated private sector.

I guess my question—I'd buy that lock, stock, and barrel—is why this has come to be, other than maybe that it was rushed without consultation. Was there consultation with you about the extraction of these three crown corporations, or arm's-length corporations, which have to, after all, compete with the CTVs and the rail systems out west and the atomic energy.... I suppose they compete on a worldwide basis.

Was there consultation, and has there been sufficient time to develop a safety net?

[Jennifer Stoddart]

No, unfortunately, we weren't consulted before the act was tabled. I think that had we been consulted we would have pointed out that these three entities are already covered by PIPEDA; that it's a much higher, more modern standard of data protection that seems to be working well. There is an exemption for journalistic, artistic provisions under PIPEDA, so this does not go to the issue of journalistic sources.

We don't know whether this is an omission or whether.... It probably seems to be an omission. One cannot imagine that the government deliberately wants to lower the standard of privacy protection, both for employees and for the public, for consumers and for citizens who deal with these organizations.

[The Chair, Conservative, David Tilson]

Okay.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Good morning and thank you, Ms. Stoddart and Ms. Kosseim.

My first question refers to page 4 of the English version of your presentation. The last sentence in the middle paragraph reads as follows:

Changing the rules for these commercial crown corporations would actually lower the standard of privacy protection they are required to meet under PIPEDA, equivalent to their private sector competitors who are all presently on a level playing field.

Representatives from Export Development Canada told us that when an organization deals with clients from the private sector and its competitors are in the private sector, the fact of opening the door under the Access to Information Act could constitute unfair competition, a thorny issue for this organization.

Is this what that sentence means?

[Jennifer Stoddart]

Mr. Sauvageau, I do not believe that the issues are the same as they are under the Access to Information Act. In the long term, Parliament should consider amending both acts based on the principles, rather than on the fact of designating certain corporations or not, given the public/private sector mix that we often find in many federal organizations.

The PIPEDA provides a rather high level of protection for personal information. This legislation contains requirements in terms of organization, transparency, accountability, and redress measures, but nothing of the sort is included in the current Privacy Act. The burden imposed on these three crown corporations would be lighter than the burden on their competitors or colleagues in the private sector governed by the same act.

[Benoît Sauvageau, Bloc, Repentigny, QC]

At the bottom of page 6, mention is made of secret votes in Parliament. What are your complaints or your criticisms with regard to the current way secret votes are held? We're talking about completely changing a tradition in the parliamentary system, because in the British parliamentary system, only the Speaker is elected by secret ballot. To my knowledge, this is not the case for independent officers such as the Auditor General, the Commissioner of Official Languages, etc. What is the problem with the current process in your opinion?

[Jennifer Stoddart]

Honestly, I don't see any problem with regard to the current situation. I have been through it. I am not an expert in parliamentary procedure. The acting commissioner, Mr. Robert Marleau, made comments about this, and I respect his opinion. He said it was preferable for the House's rules of procedure, rather than a bill, to regulate secret votes.

[Benoît Sauvageau, Bloc, Repentigny, QC]

If the change was made.

[Jennifer Stoddart]

Yes. Currently, the individuals appointed to this position are elected almost by consensus. If we opt to take a secret ballot, we can assume that everybody would vote the way they want to, which could lead to a situation where two thirds would be in favour and the other third would be opposed or to an election with a majority of 10 votes, etc. If we move in that direction, I agree with the Auditor General to say that votes should be secret. I am not asking for the current process to be changed.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you, Mr. Chair.

You are in favour of keeping the status quo, but if the committee recommended a change, you would prefer the vote to be secret. Your first choice however is the status quo, is it not?

[Jennifer Stoddart]

Yes.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you, I have no further questions. I don't know if Ms. Lavallée would like to ask any.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

You asked whether the government wanted confidential information to receive less protection under Bill C-2. You also mentioned that the current level of protection was sufficient and that the bill would decrease that level.

Do you really believe that personal information will be less protected under this bill?

[Jennifer Stoddart]

Yes, with regard to these Crown corporations. It's more than a thought, Madam member.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

For the three Crown corporations that you mentioned?

[Jennifer Stoddart]

This is an incontrovertible legal fact. The Privacy Act does not include all the aspects of the Personal Information Protection and Electronic Documents Act, which is a more recent statute by nearly 25 years and which applies to the private sector.

Currently, these Crown corporations come under the PIPEDA. This means that if people have a problem with regard to the protection of personal information, they cannot only file a complaint with us but they may request remedial action. And we can also make some suggestions. If the corrections are not made, these individuals may go to federal court to obtain compensation.

At the request of the standing Senate Committee on Access to Information, Privacy and Ethics, I will be tabling next week a discussion paper on reforming the Privacy Act. Under current legislation, you can only request access to your file. You may request that corrections be made, but if they are not made, the process ends there. Neither the individual or I or the commissioner may go to federal court on your behalf, or obtain compensation. This was recently confirmed by the federal court. Furthermore, current legislation regulating the federal public sector does not contain a code of conduct that applies to personal information, while the legislation regulating the private sector does contain such a code.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Thank you, Ms. Stoddart, for your observations. Listening to you, it made me think that much of what we're doing today with Bill C-2 really had its origins in the incidents in your office. I remember, of course, that the inquiry of the government operations committee into the Office of the Privacy Commissioner was sort of a catalyst for a lot of us realizing, first of all, the need for better whistle-blower protection, because we remember the scene when these honest, well-meaning whistle-blowers were so concerned about their own protection or lack of it that they felt they had to bring legal counsel with them to make their presentations to a standing committee of the House of Commons. That, more than anything, just drove it home to us that the whistle-blower protection regime is woefully inadequate. So I thank you for your observations on that today.

Early in your brief you made the point that privacy is not synonymous with secrecy, which is a very good point to raise here, I think. But by the same token, the Auditor General, when she was a witness to this committee, testified that whenever you increase access to information authority or regulations, or improve access, as it were, it has the effect of reducing the amount of documentation. In other words, there's a problem from her point of view; she finds that there's less to audit when there are access to information requests going on.

Do you anticipate corresponding problems with privacy complaints if we increase dramatically the access to information provisions within Bill C-2?

[Jennifer Stoddart]

No, I don't think it has the same effect on personal information. I think there's a minimum amount of personal information that has to be held and a minimum amount of personal information that's always generated, because it's linked to individuals. So we don't see this phenomenon that Commissioner Reid has certainly spoken of at some length. We haven't noticed this as a phenomenon.

In fact, I would say that the opposite is true, but maybe for other reasons, because of the possibility of linkage to individuals. A lot of government is about governing citizens. A lot of the private sector, also, is about managing the marketplace and consumer relations. So I think there's an increase in the holdings of personal information. But we haven't done a study on it. That's a personal opinion.

[Pat Martin, NDP, Winnipeg Centre, MB]

So you don't see any competing interests here between the public's right to know and the individual's right to privacy.

[Jennifer Stoddart]

Yes, as you point out, there are always competing interests, and this is the subject of ongoing debate and ongoing adjudication. The Supreme Court of Canada came out with an important decision just last month. But that's an inherent and healthy tension in a democracy.