Evidence of meeting #20 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was pipeda.
A recording is available from Parliament.
4:50 p.m.
Liberal
Sukh Dhaliwal Liberal Newton—North Delta, BC
Would you see us here considering similarly incorporating that into PIPEDA as well?
4:50 p.m.
Commissioner, Office of the Information and Privacy Commissioner of British Columbia
I don't know that I can usefully respond or make suggestions on that front. Clearly it's an issue that has been addressed through interpretation of the definition of “personal information” under PIPEDA--what is personal information about an individual. So whether or not it's necessary to add a definition in light of the fact that this interpretational approach has already been taken is something that I'll respectfully defer to the committee and others.
4:50 p.m.
Liberal
The Chair Liberal Tom Wappel
Ms. Steeves, there's been a lot of interest of committee members on the issue of work product. Would you like to comment on Mr. Dhaliwal's question?
4:50 p.m.
Department of Criminology, University of Ottawa, As an Individual
I'm curious as to whether or not you've had a chance to talk to organizations like the Ontario Medical Association or the Canadian—
4:50 p.m.
Department of Criminology, University of Ottawa, As an Individual
Okay.
Often in the work I've done I've been told by GPs that they have serious concerns about capturing that type of information for two reasons. First, it can be de-identified but it's very difficult to make it truly anonymous, and they feel that puts their patient at some risk. Secondly, I've heard the argument made that this negatively impacts the relationship of confidentiality between the primary health care giver and the patient.
My last comment would be that I think we need to think more critically about the difference between research as a public interest or a public good and the commodification of this information for commercial purposes. PIPEDA already has exemptions for research for scholarly or statistical purposes, and that information is available, usually with consent, because most ethics committees are going to look for consent, and it does flow into the research community with certain ethical protections. You're talking a different thing when you're talking about selling the information in order to convince a doctor to give one particular pharmaceutical product rather than another that has the same medical indications.
4:55 p.m.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
Thank you, Mr. Chair.
Thank you for coming here.
I'm not a lawyer, but I understand that English common law all revolved around property rights. Are we in a new era? Should we be making laws that say thou shalt not, and if you do, bingo? Are we just dancing around this thing?
We know, for instance, it's against the law to be a peeping Tom, but if you change in front of the window and you draw a crowd, it's going to be a little.... So many of these things are... I want to go a little further. If I'm a small business, you scare the daylights out of us with all these laws, because really there's no malice there. I mean, a small business might want to have a customer list and maybe wants to make sure that this guy isn't stealing roses when he isn't paying for them. We're getting into areas where there seems to be a contradiction. On the one hand there are some things you're talking about, and we think, wow, we have to do something about this, but on the other hand, as Mr. Tilson said, if you're surfing the Internet and you're doing all the...like that peeping Tom, you're standing in front of an open window.
To get back to my first question, are we at a threshold where we have to develop a whole new set of laws?
4:55 p.m.
Department of Criminology, University of Ottawa, As an Individual
The point is that PIPEDA is the result of a negotiation between consumer groups and the private sector. They've worked out a bunch of rules that can work, and we've enacted them in legislation. I think we need to tighten those rules to make sure that we get the result we want.
4:55 p.m.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
Yes, but we've made these rules that probably would deal with the areas you're concerned about, and I agree. Isn't there a whole host of people out there who really would never come in conflict with those things or never have any mal-intent?
4:55 p.m.
Department of Criminology, University of Ottawa, As an Individual
In response to your comments about small business, one of the things I've been privileged to work with the federal commissioner on is an educational module that's designed specifically for small-business purposes to make it easy and cost-effective for them to comply with the existing legislation.
Compliance has been seen to be quite a barrier, but I think that's because they haven't really rolled out that educational program yet. On small businesses, I agree with you, there's a lot of goodwill; they just want to know where the bar is, what hoop they need to jump through.
Right now there's confusion about the size of the hoop, and where it is, if it's over here and if it's over there. I think we need to give the educational mandate an opportunity to get out there and to create greater certainty for small businesses, and make it easier for small businesses to comply.
4:55 p.m.
Conservative
Dave Van Kesteren Conservative Chatham-Kent—Essex, ON
So you're thinking we're in an evolutionary process, not necessarily that we need to look at this completely differently, and just say you can't do that. If there's new technology, you have to submit that technology. If something comes to the foreground that can be used where we need legislation, you don't think that's—?
4:55 p.m.
Department of Criminology, University of Ottawa, As an Individual
What I actually think is you as legislators will find that no matter what piece of legislation you're touching, you're going to tickle a privacy question. It's something that we need to raise in the public consciousness, but we also need to have an ongoing democratic debate between citizens and legislators. So there is a sensitivity to the importance of privacy as a social value, and it's not just through PIPEDA, it's through the Public Safety Act, it's through the Anti-terrorism Act, it's through a number of different pieces of legislation that will flow across your desks and you'll have to make decisions on.
Again, I go back to Madame Lavallée's comment. If we recognize the importance that privacy plays as a democratic value--it's one of the fundamental parts of the rule of law--if we recognize that, chances are that when we're making choices about all those other forms of legislation, we'll get the mix right.
So one of the opportunities that PIPEDA provides us with is the chance to look at the e-commerce environment to come up with rules that respect the fact that people should have some say over the flow of their personal information.
4:55 p.m.
Liberal
The Chair Liberal Tom Wappel
Thank you.
Members, do you have any further questions?
Okay, then I'll ask the last questions.
Since you're here, Commissioner, and we would appreciate your advice on this, since you are actively involved, I'll simply read the two questions and then you could address them.
Could you outline the circumstances in British Columbia that led to amendments to the Privacy Act to address concerns about the potential unauthorized disclosures of personal information to U.S. authorities pursuant to the Patriot Act?
Secondly, could you explain why amendments were made in this regard only to the B.C. public sector privacy law and not the private sector act?
5 p.m.
Commissioner, Office of the Information and Privacy Commissioner of British Columbia
Do you want the long answer or the longer answer?
5 p.m.
Commissioner, Office of the Information and Privacy Commissioner of British Columbia
All right.
The occasion for the concern is a number of complaints arose specifically around the decision by the provincial government to outsource to private sector service providers the delivery of certain public services, specifically the administration of the provincial health insurance plan, the medical services plan.
The result of our analysis was that there was a reasonable likelihood that certain orders or subpoenas under the U.S.A. Patriot Act and legislation that it amended could be issued to reach into Canada to get to personal information in the hands of the private sector service providers if they had a sufficient U.S. link.
The legislature, three weeks before that report was actually delivered with that conclusion, chose to amend the Freedom of Information and Protection of Privacy Act to make it even clearer that foreign court orders, foreign judicial process, could not reach extraterritorially into Canada with that effect, and to impose certain other requirements on public bodies in British Columbia around the protection of personal information of citizens.
No such amendments were made to the Personal Information Protection Act. And I have from the outset, as it happens, drawn a distinction between the public sector situation, where citizens are not in a position to consent or not to consent to the decision by government to outsource the delivery of public services involving their personal health information, and the situation in the private sector, where, certainly in principle and I think realistically in practice, individuals can vote with their feet. If they're not content with the personal information practices of a particular business, they can take their business elsewhere and make that consumer choice. I think that is a real and meaningful and substantial distinction that justifies the different treatment across the public sector and private sector divide.
5 p.m.
Liberal
The Chair Liberal Tom Wappel
Thank you very much.
I want to thank both of our witnesses for very interesting and I think useful testimony--no question about it. I'm going to certainly be watching what I look at when I go to the store for Christmas shopping.
Have a safe journey back home. Thank you very much.
The committee is adjourned. We'll see you on Monday.