Information & Ethics Committee on May 15th, 2008

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

I will raise the question that I've raised with other witnesses. The commissioner has come here in the past. I get the impression she doesn't have the resources to do what she's doing now. She has a tremendous backlog. If she doesn't have the resources to do what she's doing now, how in the world is she going to have the resources to get into a court system within her commission?

[Paul-André Comeau]

I have two answers to your question. First, in very practical terms, giving her decision-making powers in very specific areas would, on the contrary, help prevent backlogs simply by eliminating frivolous applications, repetitive applications, unnecessary applications and all that. I'm convinced that would make it possible to avoid the rising backlog. And the problem is the same everywhere.

It must also be realized that there is decision-making power in the Canadian provinces, and it has never been abused. It is one way to resolve matters—and this is the second part of my answer—and it is an extremely effective deterrent. I'll give you a specific example.

Quebec's Act respecting the protection of personal information in the private sector came into force on January 1, 1993. When I entered the office on January 2, it was panic. We had received a letter from the vice-president of one of Canada's six big banks. I was astounded to see that the vice-president had tried to reach me over the Christmas holidays—I was in Europe—and simply because he had learned that a client was going to file a complaint under the new part that was entering into effect and he was afraid that quasi-judicial powers would be used in that area. Do I need to tell you that the whole matter was resolved in two hours? The client was satisfied and no hearing was ever held on the matter.

There was a deterrent effect; that is the theoretical element. The provincial commissioners use it very prudently, but it is a power that prevents abuses and deviations. In an actual case, it would make it possible to prevent backlogs, which have become characteristic of many organizations similar to the Commissioner's office.

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

Do I have any time?

[The Chair, Liberal, Paul Szabo]

Do you have one more quickie?

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

It's not a quickie, so I'll pass.

[The Chair, Liberal, Paul Szabo]

All right.

Mr. Hubbard.

[Charles Hubbard, Liberal, Miramichi, NB]

Thank you very much.

Good afternoon.

In part of your submission you say that the incumbent has a position of prestige or moral.... I think you said she could bark but she couldn't bite. What pieces should she have--or what should he have--to be able to bite?

[Paul-André Comeau]

There are two things that I am sure of and that I've already spoken about: the entire problem with these marginal but numerous applications, and the importance of solving the problems of these frivolous, unnecessary, systematic applications, and so on. I think a very clear decision-making power and a power regarding compliance with new obligations could be conferred on the departments and agencies, particularly regarding the privacy assessment. The objective is to ensure that the Treasury Board directives that would become law would be inspected and for it to be possible, at the outset, to rule out problems and errors that, most of the time, result from the fact that there isn't any money to deal with that. So people forget, and those responsible for these matters do not concern themselves with them, very often because they are engineers from the outside, consultants who don't have this privacy culture, although things are changing now, since the private sector act.

[Charles Hubbard, Liberal, Miramichi, NB]

If I'm a complainant, and I complain, and it's found that my complaint is justified, what would you suggest the recourse might be if it's against a federal department, for example?

[Paul-André Comeau]

I also think the act should be consistent with the statement of rights. A citizen who requests access to his personal information and does not obtain it can go to court, but everything else is completely eliminated from the rights that are specified in the act, stated in the act. I'm not at all asking that new rights be added, but simply that complainants be able to have their rights respected as they are defined in the act, and that that doesn't remain in a free area, in limbo as it were, where there are recommendations, the matter can't be brought before the courts, and the complainant has his head down.

[Charles Hubbard, Liberal, Miramichi, NB]

When you look at all of these, it seems as if we're trying to give the commissioner additional powers. With the Privacy Act, as it was defined and as it's being applied across Canada, are there situations where there are too many protections to the individual versus society's best interests? How, as legislators, can we develop a balance between what society needs and the rights of the individual in terms of that privacy?

For example, today people go before the courts and it's ordered that DNA should be taken from them and filed in a registry. We've never really established that registry. Are there too many rights for the individual, as opposed to the rights of society to know which people are dangers to society and should be included in a public record for police forces or public people across the country?

Another example is the terrible tragedy at Virginia Tech, where somebody thought they had no right to warn the public of a person who was unstable, and that person created a great episode and tremendous tragedy. What rights does society have to overcome individual rights that would be protected by the privacy legislation?

[Paul-André Comeau]

On that point, there are provisions in the federal act and in the provincial acts for instances where lives are in danger or serious problems arise. That's provided by the act. Very often, those responsible don't know that or don't dare use those provisions. Parliament, in its wisdom, has put things in place. There isn't an absolute void in this regard. What is the balance between individual and collective rights. That's a problem that, at the outset, stems from the Charter, which defines individual rights and government obligations, with a few collective rights for aboriginal people and things of that kind, but very few. Individual rights take precedence in our society and in our democratic systems. We obviously have to respect that precedence. Individual rights must be protected, even more so, by the political branch. All these rights are defined on the basis of the individual, but relative to political or economic powers in other fields.

[Charles Hubbard, Liberal, Miramichi, NB]

Thank you.

[The Chair, Liberal, Paul Szabo]

Mr. Wallace, please.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chair.

Mr. Comeau, thank you for coming today.

I want to clarify something, because the wording is getting thrown around a little here.

I've been on the committee for a number of years now. The commissioner has not asked for order-making powers, and is still not asking for order-making powers. As one of the recommendations, she is asking for the ability to determine whether an application is frivolous or not, and be able to get rid of it quickly. That's not really an order-making power. In my view, order-making is saying there's been a mistake so you owe a fine--there's a punitive aspect to it. I don't see that in this.

I read the brief you provided us, but I'm just learning French and need a better understanding. Could you explain the organization you belong to? I don't understand what you do.

[Paul-André Comeau]

I'm a guest professor at the Quebec National School for Public Administration, and chair of the Centre for Study on Globalization and Public Policies.

[Mike Wallace, Conservative, Burlington, ON]

Is that attached to a university?

[Paul-André Comeau]

Yes.

[Mike Wallace, Conservative, Burlington, ON]

What university is that attached to?

[Paul-André Comeau]

It's at the Université du Québec, and the École nationale d'administration publique is part of the Université du Québec.

[Mike Wallace, Conservative, Burlington, ON]

Were you the privacy commissioner for Quebec?

[Paul-André Comeau]

I was the information and privacy commissioner from 1990 to 2000.

[Mike Wallace, Conservative, Burlington, ON]

Does Ms. Stoddart also come from Quebec?

[Paul-André Comeau]

She replaced me when I left.

[Mike Wallace, Conservative, Burlington, ON]

So you both come from the Quebec system, and if I recall correctly, the Quebec privacy commissioner does have order-making powers. Is that correct?