Information & Ethics Committee on Nov. 22nd, 2006

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

We have only a little time left, so I will go ahead quickly.

I would like to remind you of the Wilhelmy matter in Quebec. Although our phone conversations on ordinary phones, what we call land lines, are protected, conversations on a cell phone or Blackberry are not. This led to a court injunction in 1992 in the Wilhelmy matter.

Don't you find that strange or anachronistic and that we should do something so that conversations on a cell phone or a Blackberry are protected to the same degree as conversations on ordinary lines?

[Richard Rosenberg]

Yes, there is a whole range of issues here. I've spoken in the past on this.

There is a real burden on individuals, ordinary people, to determine what level of protection their communication has. When we send a postcard, we don't expect much privacy. If we send a sealed letter, we expect privacy. If we have a telephone conversation or if we send out e-mail, what is the privacy expectation for e-mail? It's not a lot either, because e-mail bounces around in places before it reaches its destination. At every one of those places it could be determined. That's why, for people doing important business, you should consider encryption; otherwise you won't get any privacy protection.

Then you go on to these other technologies, the variation of a telephone to cell and so on. There are some real concerns about how the ordinary person determines what's protected and what isn't. You then have to lower your expectation or raise your expectation, and I think there is a real problem.

I don't see why, in principle, cellphones should be excused. Why are you making a land line...which doesn't necessarily mean a land line either, because you're sending it on a fixed line for part of the time but for a part of the time it's going over communication towers, so nothing is well defined that way. I think the simplest notion is that general forms of communication have to be protected, but there are going to be distinctions and problems in certain kinds.

[The Chair, Liberal, Tom Wappel]

Have you any comment, Professor?

[Prof. Colin Bennett]

I really have nothing to say unless you want me to raise some exceptions.

[The Chair, Liberal, Tom Wappel]

Mrs. Lavallée, do you have any other questions?

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

That's fine. Thank you.

[The Chair, Liberal, Tom Wappel]

Mr. Tilson.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Being knowledgeable of the Alberta act and the British Columbia act, are you able to provide the committee with a list of suggested recommendations from those acts that might be applicable or should be considered here in the federal jurisdiction?

[Prof. Colin Bennett]

Yes.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you. If you could send those to the clerk, we would appreciate that.

[Prof. Colin Bennett]

Yes, I said I would be presenting a more thorough submission, and I will include those.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you very much.

Thank you, Mr. Chairman.

[The Chair, Liberal, Tom Wappel]

Thank you.

To conclude, if I understand the presentation, Mr. Rosenberg, it's your evidence that the Quebec model has an order-making power to it. That's what you said.

[Richard Rosenberg]

Yes.

[The Chair, Liberal, Tom Wappel]

I too am new to this committee, but if I understand the history, the Quebec legislation pre-dates PIPEDA. Is that correct?

[Richard Rosenberg]

Yes.

[The Chair, Liberal, Tom Wappel]

Do you know, or does the professor know, why the order-making model of the Quebec legislation was rejected by the government of the day and the committee, in favour of the ombudsman type of thing? Maybe I should ask Ms. Jennings. Does anybody know the reason for that?

Professor.

[Prof. Colin Bennett]

There are a couple of explanations, I think. First is consistency with the federal Privacy Act and the model of implementation there. And as I mentioned, if order-making power is given on the side of PIPEDA, that would create some anomalies, but on the other hand, the Privacy Act desperately needs amendment anyway, and updating, as you may have been told.

I was persuaded by these arguments at the time, that the ombudsman model had worked very well. It was part of the culture of that office. The individuals in the office were familiar with the way that worked. I'm not here saying it has been a complete failure. There have been some advantages to it, but there have also been some clear disadvantages with respect to private sector issues and issues that do not necessarily arise in the context of government.

I gave some examples of that earlier, where the problem is not necessarily one of dispute resolution between an individual and an organization--which is the classic ombudsman approach--but one of regulation of a private entity.

[The Chair, Liberal, Tom Wappel]

Would you go as far as Mr. Rosenberg in terms of calling on the commissioner to have order-making powers?

[Prof. Colin Bennett]

That's my belief, yes. The issue concerning the naming of names and the issue concerning appeal of the commissioner's orders need to be very carefully thought through. My own perception of the B.C. and Alberta models is that at the moment they're working reasonably well. But it is early days.

[The Chair, Liberal, Tom Wappel]

All right.

Thank you very much, gentlemen. Sorry for the delay in proceeding, but I think all the members got their questions in that they wanted.

We do appreciate your time, your knowledge, and your expertise.

Committee members, this is just a reminder. On Monday afternoon we have the Privacy Commissioner herself.

This meeting is adjourned.