Evidence of meeting #33 for Access to Information, Privacy and Ethics in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was personal.
A recording is available from Parliament.
Professor Emeritus, The University of Western Ontario, As an Individual
Yes.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I would like to go back to the order-making power that you would like the commissioner to have. You know that she does not want that power. You are not of like mind there. You are not in agreement. You say that she needs order-making power because, without it, no one takes her seriously. I have difficulty understanding why the commissioner does not want people to take her seriously.
Professor Emeritus, The University of Western Ontario, As an Individual
It's too easy to not let the Privacy Commissioner know what's going on.
I'm being oratorical to make points, and I'm exaggerating a little bit to make points. It's not as if nobody listens to the Privacy Commissioner of Canada, but think of how many times she's done major reports--in June 2006 in particular--on reform of the Privacy Act, and the Ministry of Justice has done nothing. The most important audience, as far as I'm concerned, is Rob Nicholson, the Minister of Justice, who should tell the damn deputy to go do something.
You know the concept of being trapped by a paradigm or a certain way of thinking or a world view. We're all victims of that in any particular time period. There have been 25 years of the Privacy Commissioner's office. Some of the people sitting here have been there since the beginning in 1982. It's difficult to break out of a mindset that you're accustomed to.
My great friend Bruce Phillips would throw glasses at me for arguing that the Privacy Commissioner should have order-making power, because he thinks he could do it by just jawboning or talking. I don't think that's enough in 2008 or going forward.
I said to you somewhere that I'm not a futurist because I'm an historian. I don't know what kind of a privacy act you need for the next 25 years, but.... Sorry.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I am the one who is sorry because my time is up and yours is not.
Professor Emeritus, The University of Western Ontario, As an Individual
My point is you have to be looking forward, not backwards, as to what you need, and that's where the order-making power is very significant.
Liberal
The Chair Liberal Paul Szabo
I might just suggest members might want to manage the witness a little themselves too.
Mr. Tilson.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I'd like to talk about the order-making power.
First of all, I want to say I think we're all impressed with some of your qualifications, and that you have come to provide comments to us. I think you must live, breathe, eat, and sleep privacy. Good for you.
Professor Emeritus, The University of Western Ontario, As an Individual
I was dreaming about this morning's appearance. Maybe it was a nightmare, and I didn't record it properly.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Yes.
The commissioner has indicated in the past that she believes she should have order-making powers. I suspect you do too, because you are on her advisory committee, and you've known her for years. I understand that.
You were the first Privacy Commissioner in British Columbia, and between 1993 and 1999 you made 320 orders. I would be interested in knowing what percentage of those were on privacy and what percentage were on information.
Professor Emeritus, The University of Western Ontario, As an Individual
Almost all of them were Freedom of Information Act decisions, but many of them had a privacy component. I'm giving you a lot of information in a relatively big hurry.
The power I had was to issue an order to stop doing this with personal information or start doing something with personal information. For example, I discovered when I went on a site visit, an audit, that B.C. Hydro was using social insurance numbers in 1994 to keep track of their clients and send out bills, and I said, “Stop that. You can't do that.” So they stopped it. I didn't have to issue orders or anything like that.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
That's okay.
I guess what I'm getting at is that I think we decided some time ago that having privacy and information under the same commissioner would be inappropriate. We've made that decision, and that's the end of that.
Has commissioner David Loukidelis made a similar number of decisions, and have those mainly been with respect to information?
Professor Emeritus, The University of Western Ontario, As an Individual
Most of the privacy stuff is settled through investigations, complaints, audits, and site visits. I thought you were going to talk about judicial review.
Conservative
Professor Emeritus, The University of Western Ontario, As an Individual
Good.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Obviously, then, one looks at mediation. We look at investigation. We look at investigators trying to talk and people making inquiries. Maybe there is some other way of doing things, whatever the mediation process is. That's all fine and good.
The commissioner educates the public; the commissioner educates us. The commissioner advises Parliament, advises us, advises members of the public, has education programs, provides lectures across the country, sets up a website, makes investigations. And there are probably other things I can't think of.
So the question I'm getting at is if she gets order-making powers, will she have some sort of conflict? I'm not talking about mediation; I'm talking about someone who would actually hear the evidence and make orders. That person would have to have a fair bit of academic training and perhaps some legal training. We're setting up a quasi-judicial board. My question is whether there would be some sort of conflict.
Professor Emeritus, The University of Western Ontario, As an Individual
I was asked the same kind of question by the former NDP member Dave Barrett, when I first met him in 1994 or 1995 and he had just published his memoirs. Every so often people certainly ask if there is a conflict in being the Freedom of Information Commissioner and the Privacy Commissioner. There isn't. One deals with general information, and the other deals with identifiable personal information.
I am not prepared to talk with you critically about how the current Privacy Commissioner or her predecessors do their work. Some of the work of those offices has become much too legalistic. On the freedom of information side, really, if you're issuing orders, you have to be quite legalistic.
If you look at the investigation reports of all sorts of things that I wrote and my successor wrote, that the Quebec commission has prepared, that Ann Cavoukian has done, on things such as the case at the Ottawa Hospital--she actually issued an order, but it was basically a story that said here's what happened in the Ottawa Hospital--there are all kinds of these things on the website, and there is always a legal staff involved.
The good thing is--and I want to make sure I say this--that even if the commissioner had order-making power, it would be subject to review in the courts, and it wouldn't be an order-making power on everything. Right now she has only too limited a way to get to the courts, as she has explained to you quite nicely. She can only go to Federal Court for a couple of small things. She should at least be able to go to court on a much broader range of things, and get the courts into the game.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I understand all that. I don't know about the other caucuses, but I don't think ours has actually formed an opinion yet as to where we stand on this order-making power. Personally, I understand some of the arguments that have been made. I look at the cost of it. I mean, my goodness, we can't....
She was here some time ago. She doesn't even have the staff to complete the backlog she has now. It would take an enormous amount of money to set up lawyers, advisers, people who push paper. It would be incredible. She doesn't have the resources to do what she's doing now.
Professor Emeritus, The University of Western Ontario, As an Individual
That's because you're making her, under the current Privacy Act, pursue so many complaints that are almost useless. That's why she wants to get out of having to investigate every complaint.
I think it's scandalous that it takes a year to get a privacy complaint investigated. It's difficult for your constituents. It's unacceptable. But so many of the complaints are the same darn thing over and over again.
I was much more interested in going out to hospitals and prisons, seeing what was going on, and doing investigations. I did a site review of the B.C. Cancer Agency and found all kinds of things. We went back a second year and got them all fixed up. And I had 25 staff.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Don't investigators now do a form of mediation? Isn't that what they're doing?
Professor Emeritus, The University of Western Ontario, As an Individual
Yes, but it appears to go very slowly because they can't say that someone is what I call the “frequent flyer”. I had 100 cases with one character. It was ridiculous. I tried to put him in the penalty box. I did for two or three years. The courts said I could only put him in the penalty box for a year.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
You know what; I may change my mind on this, but quite frankly, I think if we give her order-making powers the whole process will come to a dead stop. Someone may change my mind on this, but from listening to what you said and listening to what she said about how she can't do her job now, if we had all this other.... This would be massive. I believe it would come to a dead stop, the whole process.
Professor Emeritus, The University of Western Ontario, As an Individual
That's a credible position. Remember, there are 217,000 public servants; there are 140 staff at the Privacy Commissioner's office. There are 86,000 people at Canada Post who are all supposed to be complying with the Privacy Act.
Liberal
The Chair Liberal Paul Szabo
The committee certainly is going to pursue that whole discussion once we hear from the rest of the witnesses.
Mr. Pearson, you have five minutes.
Liberal
Glen Pearson Liberal London North Centre, ON
Thank you, Mr. Chair.
Welcome, Professor. It's nice to have you with us today.
I'd like to ask you about privacy impact assessments, but before I do, I think Mr. Tilson was on a good line of questioning.
You talked about the Ontario Privacy Commissioner. I would like to know if there are any limitations on her powers.