Information & Ethics Committee on June 5th, 2008

[Charles Hubbard, Liberal, Miramichi, NB]

Thank you, Mr. Chair.

We are dealing with the second part of the mandate of our committee, which is access to information and privacy. Ethics is the third part.

I would hope the witnesses can really appreciate what our committee has developed into today, because we're reported as being the highest ethical committee of the House of Commons.

It's disappointing, Mr. Chair, that we've allowed our witnesses to be badgered by questions that are not relevant to the topic for which they were brought here today. I do hope you'll certainly recognize that, Mr. Chair, and move on to the second part of our meeting, which is relevant to the progress of our committee.

[The Chair, Liberal, Paul Szabo]

Thank you.

I will now move to Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you, Mr. Chair.

I've been at committees where witnesses were badgered, and I certainly don't believe this.

I also thank you for coming and listening. I hope you heard the chair today, on television, talking about parliamentarians having the right to speak and ask questions, because he was quite eloquent about it. It was only about four or five hours ago, so hopefully he remembers it himself.

In regard to the Privacy Act, my question deals with cross-border information. When you say a third party has the right to ask you questions, does the justice department in the United States, for example, have the right to request information about a Canadian inmate?

[The Chair, Liberal, Paul Szabo]

Is this an access to information matter?

[Mike Wallace, Conservative, Burlington, ON]

It's about an individual's file. I don't know, and obviously they're not sure either. I'm asking a legitimate question.

Based on the criteria that the Privacy Commissioner has put out, one of the issues that's talked about is cross-border information. I'm asking about cross-border information. It has to do with the Privacy Act. It has to do with the individuals they are responsible for. It's completely in order, Mr. Chair.

[Ian McCowan]

Mr. Chairman, I don't have the full text of the Privacy Act before me. One of the things I'm trying to remember is who has the right to make a request under the access act and the Privacy Act. Off the top of my head, I can't be helpful in responding to that question.

[Mike Wallace, Conservative, Burlington, ON]

Based on that response, obviously it's not something that happens, or doesn't happen very often. Normally, it's 50% of the individuals who are part of the system, or the other half are victims or family members who are making these requests, not foreign governments or anything like that. Is that right?

[Ian McCowan]

The majority of our requests are from inmates. There are other categories. You'll see victims. You'll see employees. You'll see other instances.

Personally, I'm not aware of the situation you're describing. Frankly, I'd have to look at the act to see whether it's even within the relevant legislative framework. I'm simply not sure.

[Mike Wallace, Conservative, Burlington, ON]

Thank you.

An additional recommendation is that the Federal Court should be broad, to allow it to review all grounds under the Privacy Act, not only access. So based on Ms. Rooke's experience, that tells me that at present the law allows an inmate to.... If the 30 days pass and they make a complaint, now based on time or lack of access, at present, without making any changes, they have the right to appeal to the Federal Court.

Is that correct?

[Anne Rooke]

They would have to file a complaint with the Office of the Privacy Commissioner first.

[Mike Wallace, Conservative, Burlington, ON]

And not get resolution there.

[Anne Rooke]

But to go to Federal Court, I believe, is when you have been denied access to information.

[Mike Wallace, Conservative, Burlington, ON]

If the inmate is denied all along, his last course of appeal is Federal Court.

[Anne Rooke]

After the Privacy Commissioner, yes.

[Mike Wallace, Conservative, Burlington, ON]

Okay.

Do you have standing at that court case, or is it only between the Privacy Commissioner and the inmate?

[Ian McCowan]

It depends. It can happen several ways.

If it would be helpful, we could give you some summary information about the litigation that we've been involved in over the last little while. Would that be helpful?

[Mike Wallace, Conservative, Burlington, ON]

I would like to know that. I don't know how much it affects you. Does it go that far that often? Or is that something that isn't...?

I know you can't comment, and you mentioned that you don't want to comment on whether it's right or wrong, but the commissioner is saying that maybe the role should be broadened. She's also saying--she, in this case--that she should be able to say whether this is frivolous or not. In fact, the Minister of Justice was here and he indicated that this might be a bit of a conflict. How do you give the right to say that this is frivolous, and on the other hand broaden the opportunity to go to Federal Court on other issues?

I didn't know whether, from an organizational.... Since you're one of the big users of the system, or at least from the Privacy Commissioner's point of view, and that's how I'm treating you today.... We're dealing with the Privacy Commissioner. You're absolutely right that she, in this case, is responsible for the act. And that's what we're looking at making changes to. But I want to know how it works for those on the ground who actually have to do the work with it.

[The Chair, Liberal, Paul Szabo]

Perhaps you want to respond quickly.

[Ian McCowan]

I don't think we have a view on the Privacy Commissioner's recommendation. My understanding of the policy responsibility, and I'm working from memory, is that it's partly Treasury Board and the justice department, and of course the Privacy Commissioner has views.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Van Kesteren, please.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you, Mr. Chair.

Mr. McCowan, returning to where we left off before I finished my round of questioning, is this a problem with the charter? Not problem, I made a poor choice of words. Is this a result of the charter? The problems we're engaged in today, is it as a result of charter guarantees? Correct me if I'm wrong, but the act is new--1991--and the charter came out in 1984. Let me put it to you this way: would we have had these problems in 1974?

[Ian McCowan]

My understanding of the situation is that the Privacy Act is basically the operative governing instrument, as much as the Access to Information Act is. There are some relevant charter considerations, but the main frame that's brought to bear on the various questions that have been discussed here this afternoon is the Privacy Act, and to a certain extent and support the Access to Information Act.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

The reason I ask that is oftentimes.... I know we were working on a copyright bill, and that's probably going to come forward soon--I belong to a committee that studies that and makes recommendations. Oftentimes we look at other governments. Obviously this isn't something new. We asked you to come because we see a problem here. Have you ever looked at other governments? Have you looked at, for instance, the correctional services in France? France has excellent privacy legislation. How do they deal with it? Are they having the same problems?

[Ian McCowan]

From the policy that we own in corrections, we look at other jurisdictions--

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Not the policy. What about the laws?