Information & Ethics Committee on May 27th, 2008

[Carolyn Kobernick]

I think this comes more under the responsibility of the Minister of Public Security, who has this information. I do not think I could find this information without requesting it from the other department. It would be preferable to ask officials from that department to come in and explain how and with whom Canada develops its agreements.

[Richard Nadeau, Bloc, Gatineau, QC]

I'm going to give you a few hints. We met with people from the RCMP and the Canadian Security Intelligence Service. These two so-called government organizations can make a request of the same country without knowing that the other one is investigating the same individual. Conversely, any given country may request information about Canadian citizens without knowing exactly what is at issue.

You are telling me that the Department of Justice has no opinion regarding the Privacy Act.

[Denis Kratchanov]

It is not that we have no opinion, but there is no agreement that covers all information exchanges between Canada and other countries under the Privacy Act.

The act provides that each institution may enter into agreements with foreign institutions to exchange information. For example, the RCMP may have an agreement with the FBI. There may even be several agreements between the RCMP and the FBI that cover various categories of information. There may be agreements between the RCMP and the French police.

[Richard Nadeau, Bloc, Gatineau, QC]

So it is up to the minister of the department concerned to assume this responsibility, beyond any "para-sovereign" consideration between the two countries.

[Denis Kratchanov]

Under the act, the agreements entered into are in the name of the person in charge of the institution. In the case of a department, that is the minister.

[Richard Nadeau, Bloc, Gatineau, QC]

If I understand correctly, information about a Canadian citizen may be exchanged with another country without the Department of Justice or the Department of Public Safety being aware of it. Is there really this much freedom and openness regarding information exchanges?

[Denis Kratchanov]

That is what would be allowed under the act.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you.

[The Chair, Liberal, Paul Szabo]

I am sorry.

I must pass the floor now to Mr. Hiebert, who will be the last intervenor.

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

Thank you, Mr. Chair.

I'm not sure who can answer this question, but maybe somebody can. The Privacy Commissioner has recommended that she be given the ability to refuse or discontinue complaints that would serve little or no useful purpose. I think Mr. Martin referred to some of the Correctional Services questions that are coming, which might fit this category.

Do you agree with this proposal? I want to know your perspective. The minister stated that he is concerned about the possible conflict with recommendation 2, but do you agree with this proposal in isolation?

[Carolyn Kobernick]

On the issue of frivolous, vexatious complaints per se, you have that ability in other legislation; so on its face, there is nothing ostensibly wrong with that in isolation. I think one of the concerns with that particular recommendation is that she wants to have the ability to determine what complaints are in the public interest, and our minister's concern was that it might limit individual complainants from being able to take their cases forward.

As Mr. Martin has mentioned, and I know from my own experience, because I come from a correctional environment, there is an issue of extensive, frivolous, vexatious complaints. So from an operations perspective, it is an issue that one needs to look at. If one looks at it in isolation, there is some legitimacy to that request.

Of course, if you look at it in the context of the nature of the complaint and her wanting to be able to determine whether a complaint is in the public interest, not all complaints might be in the public interest. For the individual complainant, it's a real issue for them, and they want to have the ability to complain to the Privacy Commissioner.

Again, there is a balancing here. So I would invite the committee to listen to Corrections to hear their views, but also to understand that there is, of course, a bigger issue here.

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

Can you think of any other way the commissioner could prioritize the requests?

I understand what you're saying, and I kind of agree with it. Natural justice would suggest that we have to give people an opportunity to get answers to their questions if we want to hold ourselves accountable, but is there some other way we could provide a vetting process or a triage?

[Carolyn Kobernick]

Again, Corrections would be a good department to have come and speak to you, because they do have some experience with that. My experience is dated. It has been probably longer than ten years since I was there—as counsel, by the way. I wasn't working in Corrections; I was still with Justice. But we did try to help develop a form of, as you say, triage system as a way to manage complaints. They perhaps have had more success in the past ten years than I could have boasted of ten years ago.

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

I have another question, if you've finished on this one. This has to do with a Supreme Court of Canada decision in 2006. It was the Attorney General versus H.J. Heinz Co. In that decision, the Supreme Court of Canada basically stated that without any binding order-making powers, the commissioner has no teeth. It was kind of a backward endorsement of what she's now asking for.

Do you have any comments on this particular decision or this indirect endorsement for changes to the Privacy Act?

[Denis Kratchanov]

Yes.

I wouldn't necessarily read too much into that decision. It dealt not with the Privacy Act, interestingly, but with the Access to Information Act. What the court was asked to look at was whether a third party, under the Access to Information Act, could use the personal information exemption of the access act when it wanted to prevent the government from disclosing information to an access requester. So the analysis had nothing, really, to do with the Privacy Act itself. It had more to do with the inner workings of the access act.

Now, in the course of its analysis, the court noted that the Privacy Commissioner's ability to provide some relief to the third party in such a case was rather limited. That was part of its reasoning for concluding that the third party could raise the personal information exemption in the access act context, but they certainly wouldn't say in the Supreme Court that they think the powers of the Privacy Commissioner are not sufficient.

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

So your interpretation is different. You don't think the Supreme Court of Canada was calling her powers limited?

[Denis Kratchanov]

The court, I think, was simply reading the provisions of the act, saying she has recommendation powers only. That's not disputed; it's a fact. In looking at that, it concluded that it was necessary to give the third party the right to claim the personal information exemption in the access act context.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Dhaliwal, please.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you.

Thank you again.

I was talking to David Loukidelis, the Information and Privacy Commissioner for British Columbia. In fact, my question was not necessarily just about him, but in general. When we look at the public sector and the private sector, the Privacy Act sets lower standards when it comes to dealing with the public sector than it does for the private sector. Do you agree with those findings?

[Denis Kratchanov]

Do you mean that the protection...?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

I mean protection when it comes to setting standards. When we are dealing with the public sector, the standards are at a much lower level than those imposed on the private sector.

[Denis Kratchanov]

Well, I certainly don't want to comment on either the public sector or the private sector legislation in B.C., to make a comparison. I think, though, the minister has already alluded to the fact that the public and the private sectors have different responsibilities and accountability mechanisms, and that, by itself, might justify different rules.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Do you recommend more regulation when it comes to the public sector than to the private sector?

[Denis Kratchanov]

I was involved in PIPEDA a bit when it was being developed. Back then I heard people say there should be more rules applicable to the private sector than to the government sector. I hear the opposite now. Frankly, I don't know.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

The minister keeps mentioning recommendation 2 and recommendation 6 when made by the Privacy Commissioner. When it comes to recommendation 6, where the Privacy Commissioner has recommended that she be allowed to refuse or to investigate complaints that are not useful for the public purpose, do you agree with that recommendation?