Mr. Chair, ladies and gentlemen, thank you for giving me the opportunity to comment on the proposal advanced by the Privacy Commissioner in his letters of March 22 and September 13.
For reasons of brevity, and I will be brief, permit me to identify the recommendations with which I agree, without commenting on any of them.
I agree in principle with 11 of the recommendations made by the Privacy Commissioner, the OPC, namely recommendations 1 to 4, 6 to 8, and 11, 12, 14, and 16.
However, I disagree with six of his recommendations. Let me touch very briefly on the reasons for not endorsing these in my further comments.
First is recommendation 5, which deals with expanding judicial recourse and remedies under section 41. The only reason for my disagreement with this recommendation is that it doesn't go far enough. I believe one of the most important remedies that can be provided to a complainant is to handle his or her complaint in a reasonable amount of time. This is currently not happening. I recommend that a time limit be imposed upon the OPC to make findings and recommendations.
Recommendation 9 is to provide the OPC with an explicit public education and research mandate. I disagree with this. The Privacy Act has been in existence for 33 years. It's not a complex piece of legislation. Its breadth and its reach are rather limited. It deals exclusively with personal information in records under the control of the federal government. I don't believe the public needs to be educated on this right of access to their personal information. I anticipate that such an added function would lead to a substantial increase to an already large bureaucracy at the OPC.
I'm also of the mind that the role of public education and research, if required, should be left to the universities and research organizations or bar associations.
Recommendation 10 is for a five-year review of the act. I also do not believe there is a need for review on such a relatively frequent basis. I'll go along with 10 years, but certainly not five years.
Recommendation 13 is to grant the OPC the discretion to discontinue or decline complaints in specific circumstances. Under the Privacy Act, Canadians have a quasi-constitutional right to access their personal information and to complain to the OPC if they feel that their rights have been violated. I feel it would be wrong to empower the commissioner with the discretion to refuse to investigate a complaint, as it would disenfranchise the complainant and deprive him or her of any possible remedy before the court.
Recommendation 15 is to extend the coverage of the act. The commissioner recommends extending the right of access to foreign nationals. I disagree, at least for now.
At present, the OPC is one of the slowest complaint tribunals in Canada. As a case in point, I have a complaint at the moment that has been outstanding since June 2012. We have been informed recently that we shouldn't expect findings before December of this year. It took four years. I will admit it is a very complex case, but it took four years to get to it.
If you look at their report from last year—this year's report will be tabled sometime today—we know there is a one-year backlog already. Anybody submitting a complaint today has to wait at least a year if they were to be at the front of the queue from this time onward. I submit that it would be folly to extend coverage of the act to foreign nationals until we can provide Canadians with the service they deserve.
I must now address the fact in his September 13 letter, the commissioner has repudiated the recommendation he made six months earlier.
I have already indicated my agreement with the recommendation on March 22 by which he proposed a hybrid system for the investigation of complaints. I agree with that. However, I strongly disagree with his September letter, in which he now asks for order-making powers.
I have trouble understanding why the commissioner has done an about-face and is now requesting order-making powers rather than the hybrid model. Like him, I will refer to the La Forest judgment. Justice La Forest warned us that such a change would be costly, that it could further delay the investigation process and, worse still, that it could lead to closed-door hearings.
I will now quote Justice La Forest's statements that are included in the Privacy Commissioner's letter.
There is a danger that a quasi-judicial, order making-model could become too formalized, resulting in a process that is nearly as expensive and time-consuming as court proceedings. It is also arguable that the absence of an order-making power allows the conventional ombudsman to adopt a stronger posture in relation to government than a quasi-judicial decision-maker. There is also some virtue in having contentious access and privacy issues settled by the courts, where proceedings are generally open to the public.
Thank you for your attention.