Information & Ethics Committee on Nov. 20th, 2006

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

The document says that the Quebec law is “substantially similar” to PIPEDA. Does that mean that if the law was not substantially similar, it could not continue to apply?

[Richard Simpson]

That question has to do with the federal act. If a provincial law was not considered

substantially similar,

the federal act would continue to apply within the province and organizations would not be excluded from the federal act's application. If I can continue in the other language, I would say that

it's more a question of the federal law and whether it would exempt organizations, rather than whether the provincial law would continue to apply. It would continue to apply regardless.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Is this not confirmation of an infringement on constitutional jurisdiction?

[Michael Binder]

No. We're dealing with a hypothetical situation. This law was drafted using the Quebec model for inspiration. The policies and ideas are derived from the Quebec act. Quebec was the first province to adopt similar legislation. If Quebec wanted to amend its legislation and remove, for instance, the provisions respecting consent, then we would object because personal information on Canadians must be protected by law. In this instance, they will be protected by two separate laws.

[Jean-Yves Laforest, Bloc, Saint-Maurice—Champlain, QC]

Ms. Lavallée has a short question.

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

Mention was made earlier of the report by Privacy International. I assume that you've read it and that you have a copy of it in your possession. Could you possibly forward it to us?

[Danièle Chatelois]

Yes. A table and a summary are available and we can send them to you.

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

Thank you.

[The Chair, Liberal, Tom Wappel]

Thank you very much.

Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chairman.

Thank you for being here late in the afternoon.

I want to know what Bruce Stanton is hiding. I want to know what his prescription is.

[Bruce Stanton, Conservative, Simcoe North, ON]

I'm not telling you.

[Mike Wallace, Conservative, Burlington, ON]

I agree with the chairman and my colleague. Maybe it's because of my previous experience as a municipal councillor, but my expectation was that staff, which I consider you to be, would give us recommendations on areas that we know nothing about--unless you're involved with it, you don't know a lot about it--but obviously that's not the case.

My question is for future reference. Since this is a required review, not something that somebody here on the committee is interested in doing.... I wouldn't say it's that political, since you had consensus to make it happen. Would we have been better off to have the minister here first--since it sounds like you work for the minister--and pose the questions we need answers to from the ministry, or should we have had permission from the minister to allow you to provide us with recommendations?

I'm new here, so this is all new to me. I'm interested in your comments, if you can still talk about it, on what a better process for us would have been.

[Michael Binder]

We may have misunderstood the requirement, but we were told very specifically that we were called here to provide an overview of the bill. It's like PIPEDA 101.

If you had asked for a recommendation, we would have reacted by either seeking authority to give you a recommendation, or by telling you we could not do it and seeking your guidance on inviting the minister. But this was to be a purely academic overview of the meaning of the act, its provisions, etc.

We took notes. If you want, we can go back and see what we can tell you about our personal views, and then get back to you on this.

[Mike Wallace, Conservative, Burlington, ON]

I appreciate that, because we haven't had the commissioner here yet on this particular topic. But in a July 2006 report, she says, “It is not the role of this Office to draft proposed amendments to PIPEDA.” So if we're not getting it from her and we're not getting it from you, I'm not sure, other than stakeholders, who we'd get it from, in terms of some direction. It's just my past experience.

In the deck you've provided here, you have suggested a number of what you have defined as minor amendments. These are the areas that you think we will get minor amendments in. Is that an accurate statement?

[Michael Binder]

Yes, we believe that the support witnesses you have on your list will probably propose some of those amendments. So we'll give you a heads-up. That's our understanding of what's coming in front of you.

[Mike Wallace, Conservative, Burlington, ON]

Okay. So we can focus our attention on those areas, and then that would be accurate.

I have a question for you, if I still have some time. Is it possible to get a review of the strengths of PIPEDA? I think there are four provinces that have their own privacy information system. I didn't see in here which one's stronger, what we like, and what we don't like in other ones. Are there things we should be adopting that the provinces adopted? Or should we be getting out of the way of the provinces? I'm not sure where we're headed with that.

For example, I had consultants in to see me about the definition in the British Columbia model. Is it a better definition or not? How do we find that out from you guys? Do you have opinions on those things?

[Richard Simpson]

We certainly can provide some indication of where provincial privacy acts--except for Quebec's, of course, which came after the federal law--have addressed some issues, like the work product issue, in interesting ways, which you might want to look at, based on what you hear from other witnesses. We're also suggesting, in response to your request for people who should be called before the committee, that provincial privacy commissioners are excellent people to discuss not just the application of their legislation, but also privacy protection in general and the way in which the regime for privacy protection works in Canada generally.

So I think in both ways we can provide some help ourselves in terms of some of those areas. But I think you'd best get it from the horse's mouth, so to speak. If provincial privacy commissioners are going to appear before the committee, then they'll give you an excellent review of how elements of their legislation are substantially similar to the federal law, and areas where they have a couple of ideas that you might want to consider.

[Mike Wallace, Conservative, Burlington, ON]

I appreciate that.

Those are my questions, Mr. Chairman.

[The Chair, Liberal, Tom Wappel]

Just for the committee's information, all of the privacy commissioners were invited to appear. Three declined, and the British Columbia commissioner will be here.

Mr. Martin, do you have any questions?

[Pat Martin, NDP, Winnipeg Centre, MB]

No, thank you.

[The Chair, Liberal, Tom Wappel]

Madam Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Merci beaucoup, monsieur le président. Thank you very much.

I'm not a regular member of this committee but I've been watching out for the review of PIPEDA since it first came into legislation, because when it was first tabled by the previous government, it was brought before the industry committee and I was a regular member of the industry committee. I'm quite proud of the fact that some of the amendments that were brought at that point and actually became legislation came from the Liberal side, and some of them, in particular, from me--the whistle-blowing protections, for instance, strengthening the actual protections and powers and authority of the commissioner.

There were two issues that were major at the time the industry committee reviewed this legislation at second reading and actually brought amendments. One was the actual privacy protection for personal information or information generated through the exercise of individual professional responsibilities, what we now call work product information. There was a real concern on the part of many of the stakeholders that the definition that we had in PIPEDA was not sufficient and that in fact it would end up being an impediment.

Following the coming into force of this legislation, because the government basically convinced the members of the committee at that time, no, no, it's fine, work product won't be a problem; the definition, even if it's not there...everybody understands that there isn't that privacy protection for work product information and therefore the current definition will not be an impediment. In fact, that's not the case. There have been cases that have gone to the courts. And the previous commissioner has actually had to issue an interpreted ruling, which has been and can be challenged before the courts.

So I think that the issue of looking at that specific definition and making a distinction between personal information and work product information and removing the privacy protection for work product information is very important. I'm really heartened by the fact that members of this committee are asking these questions, and I assume from this deck that the consultations you have had with stakeholders has raised that. And if your minister gives you permission, you will be able to come forward with recommendations or, through the minister, recommendations on that specific thing. Am I correct?

[Richard Simpson]

Always! You are correct.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Well, put it this way: I'm going to attend as many of these meetings as I can, even if I have to strong-arm some of my Liberal members not to come so I can legally replace them. And I'm going to try to convince them that if the government doesn't come forth with an amendment, they should come forth with a specific amendment to make that distinction.

The second issue I had concern with at that time was the issue of consent, providing consent, express consent, implied consent, to companies that actually collect information and then may share it with their divisions or with third parties that they have contracts with, or whatever. I'm aware of a study that was recently done by the institute over at the University of Ottawa on the whole issue of consent, and my hair went straight when I saw the results.

There's a real problem on the definition of consent, what's express consent, what's implied consent, what kind of consent is required in order to share that information with third parties, what kind of information is actually being shared. There's a real problem there. And not all companies, apparently, have put into place an actual protocol. For those that have, that protocol may not be easily accessible by the consumer who's being asked to sign away their personal information. So I'm assuming that's another issue that you have consulted on with stakeholders, and that you have a clear vision of recommendations you'll be bringing to the minister. I'm assuming you'll be recommending to the minister that he either come prepared to answer that or that he release you from your confidentiality and allow you to answer directly to this committee.

Am I right about that?

[Richard Simpson]

We know about the study that you mentioned, and yes, if I had enough hair, mine would stand up on end also. It is discouraging to hear the results of the poll like that, or the study.

What it points to, though, is not only the definition of consent, because that's certainly part of it, but it's also a question of how aware organizations are of their responsibilities under the legislation, whether it's provincial or federal, and that's something we need to address. I'm sure the Privacy Commissioner, because she has done it, she has addressed it in her annual report to Parliament, would want to talk to you about the educational component.