Evidence of meeting #35 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 powers.
A recording is available from Parliament.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
The subject addressed by your colleague poses a problem. We haven't managed to resolve that matter. I proposed a solution that would be to grant decision-making power to the Commissioner. That would make it possible to solve the problem, but, to do that, you'd have to put on kid gloves because fundamental rights are involved.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
In her sixth recommendation, which concerns the problem of frivolous applications, the Commissioner asks to be granted discretionary power. I think that's vast. Would it be possible to achieve the same objective by stating the kind of applications that she may deny? Is this way of proceeding applied elsewhere in the world?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
Yes, statutes state very clearly that applications deemed frivolous, repetitive or completely beside the point may even be dismissed. You don't need to be good at advanced mathematics to arrive at that reasoning. The discretionary power could be exercised, even if it meant it could be subject to appeal.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
But that would be within this framework. It would also be the case if we also accepted the second recommendation, in which the Commissioner suggests that the power to prosecute citizens be expanded.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
And that citizens also be allowed to go to court.
Bloc
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
No. I'm going to give you a very simple example of an individual who, after requesting access to personal information, observes that the information on him is false and incorrect. He asks that it be corrected, which is a right that has been recognized by the OECD since guidelines were adopted in the 1980s. The government official or department denies his request for access and for corrections to the incorrect information. He finds himself at a dead end. He can't go to court, and he can't have that information corrected. It's absolutely unthinkable. There are major errors in the personal information files.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
As regards the quasi-judicial power, the Commissioner says that she doesn't want it, that she doesn't need it. And yet, you say in your presentation that that's what it takes. Other individuals have come and told us that she won't be taken seriously if she doesn't have it.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
First, from a theoretical standpoint, a recognized citizen's right, particularly a fundamental right must be accompanied by a mechanism for respecting that right. Otherwise these are pious hopes, statements of principle. The Commissioner must therefore be able to intervene in the specified areas.
Second, when the act was passed in 1982, it was progressive. In the western world, it was considered an impressive act. We had progressed beyond the U.S. Privacy Act and France's 1978 legislation. Today, however, the act is lagging behind in this respect, particularly concerning the power of organizations similar to that directed by the Commissioner. These powers have been enhanced everywhere. The latest example, which is a very strong one, as you will agree, is the authority granted by the French act to the Commission nationale de l'informatique et des libertés to levy fines without going to court when people commit offences under the act. This is an enormous power. Most similar organizations now have increasing powers. These are watchdogs with teeth. There's clearly a universal trend.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
How are we to understand the Commissioner? I don't understand her. How do you understand her when she says she doesn't want this kind of power, which would enable her to be more effective?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
I can't read Ms. Stoddart's mind. I have two interpretations on the subject. The first is that she is a lawyer and espouses the ombudsman model. In theory, an ombudsman has no decision-making power. As she respects power, she is unable to reason in that manner. I'm from another school, and I say to myself that the Privacy Commissioner has been given mandates respecting the private sector. Is there another officer of Parliament who intervenes in the private sector? The Auditor General, the Chief Electoral Officer, the Commissioner of Official Languages all deal with the public sector. So we've departed from the model and there's been no scandal. The building is still standing. That's a theoretical response.
The second interpretation is that an entirely different factor has been introduced in 25 years of practice. We have to make a clean break with tradition and go against what has been put in place. You have to assess the pros and cons. That's why my recommendation on the decision-making power is limited to specific cases that are consistent with some of the Commissioner's proposals.
Bloc
Carole Lavallée Bloc Saint-Bruno—Saint-Hubert, QC
I'd like you to talk about the European Article 29 Working Party. I'd like to know why Canada is excluded from that.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
Because it's not a member of the European Union. It's a combination of all similar organizations in the European Union. It is informed of decisions, it is solicited, and it sometimes takes part in processes. That was the case in the investigation of SWIFT, the personal information analysis and credit business. However, it still lags behind. It is not a participant in what is really the authority where privacy matters are considered, evaluated and decided.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
When we were looking at PIPEDA, we talked about the concern of destruction of documents. We talked about the concern that documents were being found in dumpsters and dumps in the United States and all kinds of rather worrisome issues. If it happened there, it could certainly happen with this legislation.
I'd like you to comment on the whole issue of destruction of documents, because I don't think there's anything in the act that deals with destruction of documents. In other words, it's a problem, and if it's a problem in one area, it's a problem in this area.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
You're entirely right. The destruction of personal information, whether it be in paper format, on magnetic tape or CD-ROM, is a major problem that arises from time to time. When I was at the access to information commission in Quebec, there were major cases of documents thrown into the waste basket, in the street, which disclosed individuals' credit information and mortgage information in suburban East Montreal, for example. In the middle of Rue Saint-Jean, the main road in Quebec City, personal information from a law office on the preparation of divorce cases was found. There's also the latest case that was just handled by New Brunswick—
Conservative
David Tilson Conservative Dufferin—Caledon, ON
And we could, too. We've heard them in this committee when we were discussing this issue before.
My question is whether there should be specific provisions in the legislation dealing with this. I mean, you try to encourage private corporations, whether they are banks or department stores. Winners was a problem. There was something there. There was CIBC. I hate to mention those names again, but it happened.
If it happened to those institutions, it could happen to governments. Dealing specifically with governments, should there be something in the legislation, and if so, what should it be?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
That's possible. The Commissioner didn't make that a direct recommendation, but Recommendation 3 talks about the privacy assessment—
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
That's the recommendation that concerns the privacy assessment. The privacy assessment models developed by the Treasury Board Secretariat obviously provide for the destruction of personal information. It should be included in the act and the privacy assessment should be made mandatory. It may not solve the problem, because there will always be accidents and negligence, but mechanisms will have been put in place to prevent them.
I think that's one way of responding to your concern, which is indeed a constant concern.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
The issue of order-making powers was raised by Mr. Pearson, and it has been raised by some witnesses in the past. I haven't formed an opinion yet as to whether she should or whether she shouldn't, although I get the impression she already has mediation powers. Is that a fair statement?
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
Does she have mediation power?
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Well, people call up and officials investigate. Maybe I'm not using the right terminology, but investigators talk to people. I know I'm using a rather broad term for mediation.
Let's say we do give her those powers, then you can go to the courts.
Director, Laboratoire d'étude sur les politiques publiques et la mondialisation (ÉNAP), As an Individual
Exactly right, yes.
