Information & Ethics Committee on May 27th, 2008

[Rob Nicholson, Conservative, Niagara Falls, ON]

I hear what you're saying.

[Pat Martin, NDP, Winnipeg Centre, MB]

Don't you think that's common sense?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Believe me, what you're saying makes sense, Mr. Martin. Again, I'm not pronouncing on this, or indeed on the second recommendation. I'd be very interested to hear what you have to say, and will be following very closely what witnesses have to say on this. I believe CSC is coming before you as a witness; you might want to put the question to them.

[Pat Martin, NDP, Winnipeg Centre, MB]

You did touch on PIPEDA in your opening remarks, and it's related to privacy, so I'll go that far.

The one thing we were frustrated about in your reaction to our report--we studied it for a long time--is that you pretty much pooh-poohed...well, that's not the technical term, but you pooh-poohed the one key recommendation that we thought was critically important, which is the duty to notify. If your personal information--

[Rob Nicholson, Conservative, Niagara Falls, ON]

Are you saying I pooh-poohed PIPEDA or just a particular recommendation with respect to PIPEDA?

Did you want to say a few words, Mr. Kratchanov?

[Pat Martin, NDP, Winnipeg Centre, MB]

The duty to notify was very important to us. It didn't seem to get a very positive reaction from the government.

[Denis Kratchanov, Director General, Counsel, Information Law and Privacy Section, Department of Justice]

The Department of Industry is responsible for PIPEDA, not the Department of Justice.

[Pat Martin, NDP, Winnipeg Centre, MB]

You're right. I stand corrected. Thank you.

[The Chair, Liberal, Paul Szabo]

I'm sorry, Mr. Martin, your time has expired for this round.

Mr. Hiebert, please.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you, Mr. Chair, and welcome, Mr. Minister, to this committee. We're glad to have you here.

I have a couple of questions.

One of the things the commissioner has suggested is that she have greater authority in the area of enforcement. Some witnesses have even suggested that she be granted order-making powers. We've noted that her current role is as investigator, but we're wondering whether or not this additional role of prosecutor should be added to her office or whether perhaps this might be too much authority under one roof.

Should the powers of the commissioner be expanded to include what might be considered the equivalent of a prosecutorial role?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's an interesting question, Mr. Hiebert.

The Privacy Commissioner, in her top ten fixes, or quick fixes, actually didn't suggest that particular authority for herself. It would certainly alter the nature, it seems to me, of the role, which is as an ombudsperson for people. There are a number of powers that are given to the Privacy Commissioner under the existing legislation, and it seems to me that would be a fundamental change. Your committee may wish to make recommendations on that, but as I say, I think you should take into consideration that the Privacy Commissioner herself is not asking for that.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

But would you support or oppose giving her prosecutorial power?

[Rob Nicholson, Conservative, Niagara Falls, ON]

For the most part—and, again, I was involved with this area fairly extensively as a member of the justice committee quite some time ago—I actually like the general balance and the general tenor of this particular piece of legislation. That's not to say it can't be changed or indeed that it shouldn't be changed. Nonetheless, I'm quite comfortable with the role the Privacy Commissioner exercises at the present time.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

All right.

Some have suggested that there be penalties associated with this additional responsibility. But given that the government, under the Privacy Act, would be the defendant in these circumstances, do you think penalties are appropriate, or is the public scrutiny that currently occurs sufficient?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think, Mr. Hiebert, you and your committee should make recommendations on these questions. I'd have to see a lot more on it to pronounce on exactly what you mean by “penalties” or fines being levied. Is that what you're...?

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Against government departments, yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I'll have a look at what you have to say, but from my point of view—and I said this in answer to Mr. Dhaliwal—I actually think the legislation is a pretty good piece of legislation, and I've always believed that, quite frankly, for the last 25 years, since it was introduced and passed. It is 25 years old, and we should review these on a regular basis, but I think it does strike the right balance, in conjunction with other changes that have been made.

Since that time, of course, interpretations based on the Charter of Rights, in particular with respect to sections 7 and 8 of the charter, add another dimension to this. PIPEDA, which Mr. Martin talked about, is another component of that. Have a look at it, but again, for my money, the act has worked well.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Okay.

You've introduced Bill C-27, which is an act to deal with identity theft through the Criminal Code. I'm wondering if there are other things we could do to the Privacy Act that might address some of the concerns that are perhaps left unaddressed or are perhaps not properly dealt with through the Criminal Code. There might be some avenues that haven't been appropriately addressed. Sometimes the Criminal Code can be a blunt instrument. There might be other ways of assisting with the changes to the Privacy Act that you're trying to accomplish. I'm wondering if you or your colleagues have any suggestions along those lines.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's a very interesting thought. I indicated to those across the aisle that the constant challenge we have is responding to the changes in technology and making sure the legislation, be it the Criminal Code or indeed any other federal legislation, responds to the changes in technology. If there are gaps that you believe could be filled in by the Privacy Act, by all means make those suggestions. Again, I'm very interested to hear them.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

In general, do you support the ten recommendations, or are there other additional quick fixes beyond those ten that you think we should be considering?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It would be, I suppose, somewhat presumptuous for me to come up with other quick fixes that weren't thought of or articulated by the Privacy Commissioner. I hope in my initial comments that there's nothing outlandish or outrageous about any of these. Many of them, I think, could be accomplished, quite frankly, within the existing legislation. I'd be interested to hear what you have to say. I was hoping to see, and in the first round of questions I pointed out that I'd like to see, more analysis of the relationship between recommendations number 2 and number 6. That's my own opinion. You may conclude that there's no problem, that they can both coexist, but it seemed to me, when I had a look at these initially—and I've thought about it since—there might be some challenges. I'll be interested to hear what you have to say.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

The Privacy Commissioner obviously believes we need to modernize the act. I'm wondering if you have any thoughts on how our Privacy Act compares to other acts in an international context.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'm sure there are greater experts than I on that. But in my discussions with departmental officials and in my analyses over the years, we always do very well in this country. If you started with the largest countries in the world and went down that whole list, you'd say that Canada does a pretty good job of protecting these basic rights of its citizens.

Privacy International, an independent London-based non-governmental organization, placed Canada among the top countries of the world in terms of overall privacy protection. There are different slants on this from other countries--the United Kingdom, the United States, and others--but nonetheless I think we stack up well. One of the reasons why you're having an analysis is to make sure we are at the forefront of reasonable protection of people's privacy. That's presumably why you'll be making recommendations--or you may not make recommendations. That, of course, will be up to you.

[The Chair, Liberal, Paul Szabo]

Thank you, Mr. Hiebert.

Mr. Minister, two or three times you referred to your view of the legislation. One of the areas I hope you'll be able to amplify when we go on to further questions is that of the operations and the condition of the operations of the state of the union in both the access and privacy commissions. You're probably aware from your briefings that there are human resource deficit issues that have led to significant backlogs, etc.

This is a serious matter. I hope you will be able to give us some assurances that it's not just good enough to have an act; if the act is not being enforced and responded to, having a good act really doesn't help you very much.

[Rob Nicholson, Conservative, Niagara Falls, ON]

We want it to work. These are independent organizations that operate at arm's length. The government has looked at any budgetary requirements on a regular basis for the last 25 years. The challenge of all governments is to make sure that the resources of the Government of Canada are provided to organizations like the Privacy Commissioner, the Information Commissioner, and other independent officers of Parliament, in the work they do.