Finance Committee on May 29th, 2014

[The Chair, Conservative, James Rajotte]

Is there further discussion on the amendment?

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I would speak in favour of the proposed amendment. To me it's a point of clarification. All the Green Party amendment would do is provide for greater certainty on certain things. I believe that if it's the case we want our existing laws, like the Privacy Act, to take precedence, and if there's any ambiguity in the clause about that, why don't we put it on record and clarify it? It's only an attempt to clarify what appears to be the intent already, so I think it's, in a sense, a friendly amendment and worthwhile.

[The Chair, Conservative, James Rajotte]

Thank you.

If there is no further discussion on the amendment, we'll vote on PV-1.

[An hon. member]

A recorded vote.

[The Chair, Conservative, James Rajotte]

(Amendment negatived: nays 5; yeas 4 [See Minutes of Proceedings])

I will go to NDP-7.

Mr. Rankin, please, on NDP-7.

[Murray Rankin, NDP, Victoria, BC]

Thanks, Chair.

In a sense, this has a similar intention as that of the Green Party amendment, so it may not be acceptable, but I put it out as an amendment, again, to provide greater certainty to phrase other law in the proposed subsection to which she spoke. It does not include any other act. It expresses fundamental values such as the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, the Canadian Human Rights Act, the Privacy Act, the Official Languages Act, and the Access to Information Act.

Chair, in the courts, all of these statutes have been considered quasi-constitutional in nature, except in the case of the charter, of course, which is called a constitutional law. They are part of our fundamental framework of laws in Canada. There seems to be some ambiguity in proposed section 4 about inconsistency between this act, the budget implementation act, and the provisions of any other law. It does say that the agreement prevails to the extent of the inconsistency. Does it prevail over the Privacy Act? That can't be the case. It can't be the case, so this would simply clarify that and give Canadians some comfort that we're not selling the farm and our fundamental rights by passing a law of this sort.

[The Chair, Conservative, James Rajotte]

Do you have further comment, Mr. Keddy?

[Gerald Keddy, Conservative, South Shore—St. Margaret's, NS]

Yes. Mr. Chairman.

The provision is unnecessary. The charter applies where it applies. The Privacy Commissioner has given no indication that part 5 is inconsistent with the Privacy Act. The motion is absolutely unduly vague, and it's not clear what “fundamental values” mean, or what “fundamental values” are intended to mean. Similarly, the IGA and the implementing legislation do not result in any kind of general override of official languages or the Access to Information Act, so the charter applies where it applies, and the Privacy Commissioner has looked at this and given us the green light. So where is this information coming from?

[The Chair, Conservative, James Rajotte]

Mr. Cullen.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

You might want to check back with our Privacy Commissioner about having given this agreement a green light. I think serious concerns were raised by that same Privacy Commissioner, so green light might be an exaggeration of the testimony we heard.

My question, through you, Chair, is for the officials.

We had some conversation earlier about seeking advice from the Department of Justice, a normal, required practice under our laws. Concerning the ambiguity that Mr. Rankin seeks to clarify through this amendment as to which supersedes which if there's a conflict, I don't think it's fantasy to imagine a potential conflict between an intergovernmental agreement on the sharing of financial information and someone's raising a concern around privacy. I think it's a natural potential legal consequence.

Did the department seek any clarification from Justice with respect to these specific acts, particularly the Privacy Act or the Access to Information Act?

[Brian Ernewein]

I'm sorry; the question started off by referring to—

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Which has supremacy?

[Brian Ernewein]

Do you mean on the constitutional question, or other matters?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

If there's a conflict between the two, an agreement or tax treaty that we've signed under this provision and the Privacy Act or the Access to Information Act, did the department seek any legal advice as to which supersedes which, when the one is in direct conflict with the other?

[Brian Ernewein]

I'll try to answer your question as well as I'm able to.

With respect to constitutional matters, I think we said earlier that the Minister of Justice is charged with reviewing legislation and advising Parliament if there is concern that the legislation is not constitutional.

With respect to the Privacy Act, you've heard, I believe, from the interim Privacy Commissioner on that question and have obtained her views.

With respect to other matters, such as access to information, I'm not aware of that question having been specifically asked.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I am aware of her views.

You said that, at least as far as you know, whether that legal opinion was sought through the Department of Justice concerning the Access to Information Act....

It's a simple question, but perhaps it's a complicated question in the sense that when laws are in conflict, we can't foresee what the courts will rule. All I'm asking is whether an opinion was sought from Justice whereby Justice said that clearly with such an intergovernmental agreement, the Privacy Act is dominant and will, in cases, be interpreted as superseding a tax treaty agreement with a foreign nation.

Was that advice sought?

[Brian Ernewein]

With respect to the Privacy Act, it is, as I've already said, that we kept the Privacy Commissioner informed. I think the way I expressed it before is that I'm not aware that the Privacy Commissioner or the privacy office will bless legislation per se, but they offer comments.

You've had the interim Privacy Commissioner here, and my understanding is that she did not raise an issue, or at least I understood there not to be a conflict.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

The question I asked was whether a legal opinion was sought, from your department through the Justice department, as to which holds supremacy under Canadian law with respect to the privacy of Canadians: this intergovernmental agreement or the Privacy Act.

I just want to know whether an opinion was sought. You can say, “I don't know”, or you can say, “One was sought, and I won't tell you”, but I want to know whether you went to Justice and asked.

[Brian Ernewein]

I'm not aware of an opinion from Justice having been sought on the Privacy Act question. That was dealt with through the Privacy Commissioner.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Just to be clear for the record, when we asked both you and the Privacy Commissioner, we heard that there were conversations between your offices, but there wasn't any acknowledgement of seeking what Mr. Keddy talked about, a green light; there was never a moment when Finance sat down with the Privacy Commissioner and said, “We want your endorsement of this,” or “We want to know that this is in line with the Privacy Act stipulations.” There's one thing in terms of consultation. Consultation can mean what it simply means by definition: that you kept her informed as to whether there was condoning of the provisions in this act and whether we're going to see conflict.

Our concern is this, specifically—and I think what amendment NDP-7 seeks to do is to put it into plain legal text so that there is no doubt and so that it doesn't necessarily need an expensive legal process to clarify it later, which is, I think, what's going to happen under the bill as it's written—that when in conflict, the Charter of Rights, the Bill of Rights, the Human Rights Act, the Privacy Act, the Official Languages Act and Access to Information Act all will supersede this intergovernmental agreement.

If that's what the amendment says, if that is what this amendment today proposes, does it threaten any of the fundamental DNA of the intergovernmental agreement we have with the United States, in your view?

[Brian Ernewein]

I haven't considered all those points, and in fact they are not for me to consider. The Department of Justice has the standing responsibility for constitutional matters. The privacy question was obviously of interest to us because of the issues that FATCA itself raised, and so those were discussed with the privacy office. We thought we had overcome them.

Concerning the other issues, I'm not aware.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Cullen.

We'll go to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

Just for clarification, Mr. Ernewein, sir, you said to my colleague that you did not seek a legal opinion from the Department of Justice on the Privacy Act implications of this agreement or this law. Have I got that correct? You didn't ask the Department of Justice for a legal opinion. Did you ask any outside counsel for a legal opinion in that regard?

[Brian Ernewein]

No, we did not ask any outside counsel for advice.