Procedure and House Affairs Committee on Dec. 12th, 2006

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

It seems to me that Quebec's election law allows the list of electors to be distributed with the name, address and date of birth of the electors. We have recourse to the Privacy Act. Furthermore, there was a whole debate between Quebec and the Canadian government when it passed its own legislation on privacy and electronic documents. This never caused the slightest problem.

It also seems to me that the Canada Elections Act states quite clearly how the candidates and parties can use the lists of electors. Even if the date of birth of every elector is included on the list, the candidates and parties are subject to restrictions on the use of this personal information. Your arguments not to include date of birth on the lists distributed to the candidates and parties do not seem to hold water.

If you were able to support your argument with examples of real cases in Quebec where problems arose when lists of electors, including date of birth, were submitted to the candidates and parties, I might be more inclined to listen to your arguments. But I have heard nothing of the sort so far.

As I have already said, this bill describes the conditions under which personal information can be used. It is very strict, specific and regulated. I think the concerns of my colleagues about including this information on the lists submitted to the candidates and the parties are not justified.

[The Chair, Conservative, Gary Goodyear]

Could we have a comment from the witnesses, please?

Mr. McDougall.

[Dan McDougall]

I have a couple of comments.

First, the structure of the Canada Elections Act is in effect slightly different from the structure of the Quebec Election Act. There are explicit provisions for protection of personal privacy in the Quebec Election Act. The Canada Elections Act actually treats it in a slightly different way. I think the Canada Elections Act says that the information can't be used for a purpose other than what was intended. It doesn't actually address privacy issues per se. So the structure behind the two acts is very different.

A second issue that could come into play--perhaps I can ask my colleague from the Department of Justice to speak more on this--involves the charter issues with respect to personal information and privacy. To the extent that one is creating a diminution of the expectation of the right of privacy, it's important to have a link between the degree to which you're infringing on that and the objective for doing so. I guess it's our view that it's not clear that the objective can't be met in a more straightforward manner, as is currently provided by the bill, by having the information with the date of birth provided to the poll clerks as being sufficient to obtain the objective of guarding against fraud.

Ray, perhaps you could say a bit more on the charter issue.

[Raymond MacCallum]

If I may.

Section 8 of the charter is where we find generally the protection of privacy for Canadians. It precludes government from intruding into a reasonable expectation of privacy, except when it has a compelling reason to do so. To the extent that date of birth would be characterized as a type of information that people normally expect to keep private except for a good reason, the disclosure of date of birth by the government or government agent in this context to private parties would have to be accompanied with a solid policy justification. The court would undoubtedly look at that if it ever had an occasion to consider this scheme, and ask why it was important to disclose beyond the poll clerks to the candidates and the parties the date of birth of every registered elector.

[The Chair, Conservative, Gary Goodyear]

Madame Jennings, go ahead, please, to follow up.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I'd like to address that.

Clause 19, which is amending subsection 110(3) of the act, is replaced by the following. It says:

A candidate who receives a copy of the preliminary lists of electors under section 94 or 104.1 or a copy of revised lists of electors or the official lists of electors under subsection 107(3), may use the lists for communicating with his or her electors during an election period, including using them for soliciting contributions and campaigning.

I'm assuming, because I don't have the actual Elections Act as it now exists before me, that subsections 110(1) and 110(2) also include the framework of how that personal information can be used. It's very clear how it can be used, and for what purposes, and it's only for those purposes. It also makes it very clear that it's during an election period.

You may have the actual legislation before you and be able to tell me that, no, subsection 110(1) and subsection 110(2) don't address this issue at all, in which case we've only got subsection 110(3). Regarding your arguments about the charter issue, you still have not responded on the provincial legislation. When I see the federal legislation, it actually stipulates under what condition any information on the preliminary lists or the lists of electors that are given to candidates may be used, when they may be used, for what period of time they can be used, and for what purposes they may be used.

I'm still having difficulty understanding why the inclusion of the date of birth would be so problematic and possibly anti-charter at the federal level, and yet this is not a problem in Quebec. You have seven million Quebeckers of whom probably four million and some are electors, and for the last probably 25 years, our date of birth has been on the electoral list, which is distributed to hundreds of candidates in Quebec. It's never caused a problem, and no one has ever challenged it under the charter.

[Dan McDougall]

Indeed, that may be the point, that if no one ever brings a challenge against it, then there would be no reason for anyone to look at it, whether or not it is constitutionally consistent with the charter.

What we're doing here, however, is creating a new provision. As we're looking at these new provisions, I guess we look at them in light of the charter requirements and provide advice from that perspective, as a new provision.

We were looking at it in light of the potential--as we understood the committee's recommendation--for guarding against fraud. Yes, clause 110 does specify that the uses to which that list may be put--not all of those uses, as you indicated--are for the prevention of fraud. There are many uses to which those candidates put that registry information. Indeed, if the intention of the committee were to provide birthdate information in order for the candidates to be able to target youth or target the elderly, then that would be a different objective, and one would have to examine the charter argument against that, and whether it would be legitimate to do that.

With respect to fraud, however, I guess it was our conclusion that the objective of preventing fraud, with the minimum amount of invasion necessary, would be met by using this at the polling clerk stage. If there were a different objective, such as using the information for a different purpose, then we would have to look at whether or not that was a reasonable infringement on the expectation of privacy in that context which is different from what we were looking at here. There is a slight nuance of difference between the two in how we were looking at it.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So the desire was to be able to use birth dates to identify different age groups and send information; contact those particular electors with messages that would possibly interest, for instance, seniors, senior women who were single, on our party's platform that specifically addressed their issues, or ethnocultural communities within youth groups, designing.... It's obviously too late now, but I don't think the idea of having the date of birth was only on the basis of fraud.

The issue of fraud was when people actually turned up to vote. But for candidates to have access to lists that included dates of birth was completely different and had nothing to do with fraud. It had to do with being able to design messages, get them to people, and encourage groups that don't have high voting participation to actually vote.

[The Chair, Conservative, Gary Goodyear]

Monsieur Guimond.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

I see that Mr. Chénier wants to say something. I will give him a chance to say a few words because he suggested to Ms. Kim that this information could even end up in the hands of members of Parliament.

We have a fine example. Mr. Lukiwski, who is the Parliamentary Secretary to the Leader of the Government, told us it would be a good idea to include date of birth on the lists, but the bureaucrats do not feel the same way. We were elected by the public in order to represent them and regardless of what these people might think, we are the ones who pass the legislation.

I do not want to start a war with the bureaucrats, but I am sorry, it is the representatives duly elected by the public who decide. If we think it makes sense to include date of birth and, Mr. Lukiwski, if you agree with us, vote with us. You are welcome to do so. You'll see, it doesn't hurt.

Mr. Chénier suggested that even members of Parliament could get this information. I hope he knows that even if we have a lot of identifiable personal information, we are bound by law not to use it unduly.

I am a member of the Quebec bar and there is an error in my name on the roll of the ordre. It is odd, but I receive offers to subscribe to magazines such as L'actualité and Maclean's. Am I to understand that the Barreau du Québec sold its list of members? Maybe I should look into that. We are bound to obey the law.

I will give you an example. Every month we receive a diskette from Citizenship and Immigration Canada containing the list of new arrivals, or new Canadians, in our riding. I use this list to send a letter welcoming each of them to my riding and congratulating them on joining Quebec society. I use this list, but I am not about to give it to the local furniture store and say these people just arrived in Canada, probably by boat—boat people—now go sell them some furniture. I have to obey the law. We have all kinds of identifiable personal information.

Do not make members of Parliament out to be worse than they are.

[Marc Chénier]

Mr. Chair, if I may, I would like to clarify that I added the words “members of Parliament” simply because under the legislation a list is sent to members of Parliament every year. This was only to make Ms. Kim's answer complete. The lists are sent to candidates, registered parties and members of Parliament. I was not insinuating that members of Parliament are dubious, or anything of the sort.

Nonetheless, in response to Mr. Guimond, Mr. Chair, if you will allow me, I would simply like to say that it is important for this committee, in deciding on this issue, to remember that the Election Act was passed in 1996, I believe, as far as the provisions on the register are concerned. As far as the provisions on the use of the list are concerned, they were drafted a certain way that reflects the fact that the information on the lists is somewhat ordinary: name, address; there is no personal characteristic whatsoever.

Ms. Jennings is right as well: the provisions in the legislation describe how the list can be used. However, when these provisions were adopted, if the committee would have had to deal with a list of electors containing personal information, perhaps it would have decided to ensure that there were more restrictions than simply mentioning that the list could not be used in the electoral context, as is currently the case in the Election Act.

Perhaps the committee would have decided to have rules on requiring anyone receiving a copy of the list to take an oath every time. Even though the legislation states that the list is sent to registered parties, candidates or to members of Parliament, there is still the concern that at some point, someone could lose track of the list and the information could be available to those who are not entitled to have access to it under the legislation. It is simply a factor this committee should take into account.

If you are adding information to what is distributed to those who receive the list, perhaps it would be appropriate to reconsider the provisions of the legislation dealing with how this list is used and the precautions that should be taken to ensure that the information, which Mr. Dewar described as very critical as far as identity theft is concerned, does not end up in the hands of people who are not entitled to it.

[The Chair, Conservative, Gary Goodyear]

Thank you very much.

It's my impression that the object of the discussion is to convince members around the table to vote a certain way on a particular amendment versus the witnesses who have come before us. Or perhaps you want to try to convince me how to vote in the event of a tie. I'd rather have the discussion focused on the debate about the amendment instead of trying to convince our witnesses one way or the other.

Monsieur Proulx.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

On a point of order, Mr. Chair.

Your informal comment is duly noted. I know it was directed at me. Thank you.

[The Chair, Conservative, Gary Goodyear]

Not necessarily, but merci.

It's going to be a long day. It's both past, present, and future.

Monsieur Proulx.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

Mr. Chénier, Ms. Kim, Mr. MacCallum or Mr. McDougall, do you know what the consequences are to a member of Parliament who uses the list of electors improperly, in other words, in contravention to the existing rules?

While Mr. Chénier is looking into this, perhaps I could ask Ms. Kim a question.

Ms. Kim, when talking about clause 19 we are told that the amendment stems from clause 17, in that it refers to the proposed clause 104.1 on authorizing candidates to use lists of electors. And it adds: “including using them for soliciting contributions and campaigning”.

Have you ever campaigned, Ms. Kim? Do you know what it's like? Targeting groups according to age, sex, ethnicity is what it takes to campaign.

If the intention is not to allow us to campaign, then that is a whole other matter. However, it seems the intention is to allow us to campaign. Accordingly, targeting groups according to age is part and parcel of campaigning.

[Natasha Kim]

You'll note that clause 19, which you referred to, is actually not substantively different from what exists in the act now. The purpose of changing that section was to add a reference to section 104.1, which is an updated list, the preliminary list that's distributed, just so that would be included in the reference for the authorized uses of those lists. But it exists as it does in the Canada Elections Act now in terms of—

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

If I may say to you, when we use the term “campaigning”, it also includes targeting groups, whether it be by age or whether it be by whatever common denominator a group might have.

[Natasha Kim]

I suppose this eventually comes down to a policy choice. From what I understand from the minister's comments when he appeared—and this was certainly a motivating factor when the committee made the recommendation to exclude it from the list that's distributed to parties, candidates, and MPs, but to have it only on the list used at the polls—the concern was a privacy consideration, which the Privacy Commissioner did—

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

I'm obviously not going to convince you, so we're going to go to Mr. Chénier to see if he has found the answer to my question.

[Marc Chénier]

The maximum sentence for using information from a list of electors is $1,000 or three months in prison or both.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Do you think this is enough to deter a member of Parliament from using the list improperly?

[Marc Chénier]

Again, I believe it is important to remember that when we are talking about the list of electors, we are not necessarily talking about those who are authorized to use the list under the law, but those who could have access to it and use it in a way not intended under the law.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

However, if someone who has access to it uses it in a way not intended under the law, as you say, then that is because someone at the electoral officer's office, a member of Parliament or an MP's employee, leaked the information on the list. These people are subject to those penalties.

Do you not think that the penalty is enough to make an MP, an MP's employee or the chief electoral officer be careful with the list, whether the list includes date of birth or not, Sir?

[Marc Chénier]

It is not necessarily a matter of leaking information from the list. Unfortunately, it is a matter of leaving the list somewhere and making it is easier to access than it should be.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Then, perhaps we shouldn't give the list to MPs or to candidates because there is always the risk that some of the information will be—