Information & Ethics Committee on Sept. 27th, 2016

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Recommendation 15 of the Privacy Commissioner is that the act be extended to cover the Prime Minister's Office and ministers' offices. In the absence of that in the current situation, is it the case that private information is largely unregulated in those offices, in the way that it's unregulated for political parties?

[Prof. Colin Bennett]

Yes, I believe so. It's an issue, because when one of your constituents goes to you with an issue, for example, there's a presumption that the conversation happens in confidence and the information that's being transmitted is not going to find its way into the NDP database, for obvious reasons.

Technology, however, has raised some questions about that under certain circumstances. The ability for members of Parliament, in their capacities as members of Parliament, to capture data that might possibly be of interest when the election comes around is now increased. That, I think, produces a heightened need to do something about this major category of databases that are simply not covered by our privacy regime.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

If it's the case that personal information isn't regulated in the PMO and it's not regulated within political parties and there are no rules about transfer of government information.... Ordinary MPs don't have access to government databases. Granted, we're approached by our constituents and we have a responsibility—an ethical one, anyway—to respect that information, but the PMO has access to government data, and there are no rules governing its use within the PMO and there are no rules governing the transfer of that information over to political parties, which is then another unregulated environment. Am I understanding that correctly?

[Prof. Colin Bennett]

You'd have to look at some of the precise exemptions in the Privacy Act. There are certain provisions in section 8 concerning disclosures of government data to members of Parliament in their capacities as members of Parliament, so that is relevant to the question you asked, but there is a gap. I support what the Privacy Commissioner has said in extending the Privacy Act to those offices. It shouldn't be controversial.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Am I doing okay for time?

[The Chair, Conservative, Blaine Calkins]

You have a minute and a half left.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Monsieur Drapeau, if I recall correctly.... Actually, I'm getting confused about who said what now, but I know there's been some advocacy here today for the enhanced ombudsman model. At one time, that was the position of the Privacy Commissioner; since then, he's changed his mind. I'm wondering if those who are advocating that today want to explain why they think the Privacy Commissioner changed his mind and why they think his reasons were not adequate.

[Col Michel Drapeau]

I obviously don't agree with the reason given by the Privacy Commissioner in his September letter. I think we should go back to the March letter, in which he argued—and I would support it—that it should be a hybrid position. My position is the same as that of the CBA.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Okay. What is it, in particular, about the reasons he gives for that change? What do you think happened in his mind that—

[Col Michel Drapeau]

I don't know. I can't read minds. I presume he had a coffee with the Information Commissioner and they had a meeting of the minds. Really, that would be a plausible explanation as to why.

Frankly, there should be a similarity of approach. I also said before this committee that the Information Commissioner should not have order power. To be consistent, both of them could be using a hybrid model, which seems to be gaining in popularity and efficiency.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Blaikie.

We now go to the last of our seven-minute questions. Go ahead, Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much. I want to pick up where Mr. Blaikie left off.

It's interesting that the hybrid model is taking off. We have one jurisdiction that uses it. We have a number of jurisdictions that use the order-making model.

Mr. Dickson, I want to pick up on something you said. I think you said it's more formal and attenuated, would require more procedural fairness, would be less user-friendly, and perhaps staff would have to be divided. B.C., Alberta, Quebec, and Ontario all use this model, and a number of international jurisdictions use this model as well. Is there evidence we can point to that these concerns are warranted?

[Gary Dickson]

I think my response would be this. If you take the approach the CBA does—that Canadians have quasi-constitutional rights to have their privacy protected and to have access to government records and government information—then the focus needs to be on accessibility, and accessibility usually translates into a simpler process rather than a more complex one.

When we look at the kinds of complaints that come from different jurisdictions, it's often about delay. It is not so much that decisions of commissioners aren't respected—most times they are complied with, and that's true right across the board, as well as federally—but the issue tends to be one of delay. I think the proposal the Newfoundland committee came up with, which is embedded in the Newfoundland legislation, points a way to an expedited process that can reduce the delay by ensuring a more informal process.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

When we look at B.C., Alberta, Quebec, and Ontario, and then we look at the Newfoundland model, are there differences in formal processes? Do the first four jurisdictions have court-like processes, or is it actually more of an informal process with a commissioner-style model?

[Gary Dickson]

There is no question that there is more formality in the process. If you take Alberta or British Columbia, they have people in their office who specifically work on mediation. They have other people in the office whose sole responsibility is writing formal orders in those jurisdictions, so you have that kind of division. It brings in some additional complexity.

Under the existing Privacy Act, there is a provision that the commissioner creates his own procedural rules. There is a provision that nobody is entitled, as a right, to be able to see what the other party has said. They are not entitled to sit in when other people are being interviewed or examined.

I think the Canadian Bar Association's position is that the enhanced ombudsman model provides a significant advantage in terms of flexibility and accessibility.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I have one more question, and then I would like to get Mr. Bennett's thoughts on the same thing.

With regard to procedural fairness, we have four jurisdictions that have the order-making model, and we have Newfoundland, which has the hybrid model. Would there not be the same procedural fairness concerns?

I can imagine a case in which I bring a complaint to the hybrid model in Newfoundland, and they disagree with me. I want to take that to court, so I have to have been dealt with in a procedurally fair manner by the hybrid model at the first instance. Why is it different when we look at procedural fairness in the hybrid model and in the order-making models?

[Gary Dickson]

In Alberta and British Columbia, for example, the process is clearly more formal. There are more opportunities for parties to be able to see what the other side is saying and what other parties are submitting by way of argument. That, of course, is part of procedural fairness.

What happens in an information commissioner's office or a privacy commissioner's office in the ombudsman model is that there is more flexibility. If an issue comes up in the course of an investigation in Alberta or British Columbia, then it is almost like going back to the start. You have to do a bunch of notifications and so on, and start over. There are additional time periods.

With the ombudsman model, if in the course of an investigation another important issue comes up, you provide a more informal notification to the public body. You give them a shorter timeline to provide any additional response. We would see that as being fair, but it is not as rigid a sense of procedural fairness as what you get with an administrative tribunal.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much.

Mr. Bennett, I still have some struggle in understanding why we need a full administrative tribunal with an order-making model. When we look at the four jurisdictions that use the order-making model in Canada, do they have full administrative tribunals? Is that how they operate? Is it incredibly formal? Why would you defend the order-making model?

[Prof. Colin Bennett]

I think a distinction has to be made between the tribunal model in Quebec and the commission models in B.C. and Alberta. I'm on the external advisory committee for the B.C. information and privacy commissioner, so I may have some biases. I certainly accept Gary's analysis of the pros and cons. There's no issue that it's a complex question.

We should also be very careful about generalizing from the provinces to the federal government and translating models that might work in B.C. or Quebec and think they're going to work in Ottawa.

However, I do favour order-making for a couple of reasons. I think it focuses the mind better. If the B.C. commissioner were here—well, we don't have one at the moment, so the former commissioner—she would say that knowing you have that power focuses the mind of the organization to mediate. Therefore, the kinds of processes that are engaged in mediation should take place more expeditiously, more seriously.

I don't think simply having order-making power necessarily makes it longer. Again, it's apples and oranges, but it's not necessarily.... The other thing about order-making power is it does establish a clarity of law which you do not necessarily get through an ombudsman process.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

There are only a few seconds left.

Mr. Dickson, Newfoundland doesn't have that many complaints. It is a different world when we move to the federal government and the amount of resources that would be brought to bear. Would we not have some concerns about having de novo hearings at the court level and losing our efficiency?

[Gary Dickson]

I guess the hope is that you're still going to get a relatively small number of matters that end up going to court, and that is the experience right across Canada, and federally too.

The bulk of these matters are dealt with ultimately by recommendations accepted by the public body and implemented by the public body, and that's the bulk of the work, which is why there's so much focus on process. Process and process delays, I think, are probably the number one problem with oversight offices across the country.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks a lot.

[The Chair, Conservative, Blaine Calkins]

Thank you very much.

We will now move to the five-minute round. We are going to start with Mr. Jeneroux.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you.

I wouldn't mind going back, Mr. Dickson. We share a similar history, having both been elected to the provincial legislature of Alberta. I don't know if we'd agree on a lot if we had been put back in the same situation, but I wouldn't mind your thoughts, because of your background, on the political party piece that you were speaking with Mr. Bennett on.

[Gary Dickson]

My observation would first be that Colin Bennett is very persuasive. I'd say as a result of some of the work he has done, the Canadian Bar Association's access and privacy branches have been engaged with this very issue. Not only did that involve the opportunity to hear Professor Bennett talking about some of the issues, but we've also, as an access and privacy branch, broached that with the Department of Justice and the Office of the Chief Electoral Officer to explore what can be done.

The CBA has no formal position and certainly isn't here to offer a solution, but we're mindful that the former chief electoral officer of Canada has recommended changes to the Elections Act that would require certain standards in terms of protecting personal information collected by political parties. We're mindful that it may be my friend Colin Bennett's persuasiveness, but I noticed that the chief electoral officer in British Columbia has, in an annual report, recommended it's high time that there be some attention paid to developing rules around this issue.

I think the difficulty is determining the best vehicle for doing it. I think there's a growing support and a growing recognition that this area ought not to be left unregulated. This is simply because of some of the huge breaches in the U.S. involving political parties and political organizations that have amassed huge amounts of personal information and then lost it. People are starting to be more concerned about it.

The question is, as Professor Bennett said, what's the ideal vehicle? It clearly wouldn't be, I think, the federal Privacy Act, which is focusing on government institutions. It might be some changes to the Canada Elections Act. It might be developing separate legislation to deal with it. It doesn't nicely fit under PIPEDA, the Personal Information Protection and Electronic Documents Act, either. either. Maybe it would be brand new legislation....

I simply want to say that there is this increasing recognition that there needs to be some means of providing protection for citizens when their personal information is collected, used, and disclosed by political parties.