Procedure and House Affairs Committee on June 5th, 2018

[Regan Morris, Legal Counsel, Office of the Privacy Commissioner of Canada]

Well, keep in mind that PIPEDA and substantially similar legislation in the provinces exempts journalistic activities from the application of PIPEDA, so that would apply to La Presse with respect to their collection, use, and disclosure of information for journalistic purposes. With regard to the extent to which a news structure would continue to engage in commercial activity, I think we would need to know more about the details of how that structure would operate.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Just as a side question on something that piqued my interest, can you explain a little about how the law works in British Columbia? You referred to that in your speaking notes, so I'd like to understand. Are there audits done at some point on how the privacy rules are working in the political parties? Do they have to disclose? Have there been complaints? Anything would be useful.

[Daniel Therrien]

You need to start with the fact that under B.C. legislation, the term “organization” is defined more broadly than it is federally, so the distinction we've been discussing between commercial organizations and other types of organizations is irrelevant in British Columbia. The provincial privacy legislation applies to all organizations, and that's why in British Columbia political parties, being organizations, are covered by provincial privacy legislation.

Then the usual procedural mechanisms apply. It is possible for individuals to make complaints. We saw earlier this year that the then acting commissioner in British Columbia decided to initiate an investigation against all parties. Individuals can complain, which leads to investigations by the commissioner. The commissioner can himself initiate complaints where he thinks there is reason to investigate. Those then lead to findings as to whether or not there have been violations of the provincial legislation.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Okay.

One of the things I have a problem with when people declare to me that there has been a breach of their privacy is the following. When my father moved from Quebec to Alberta, he had to reapply for his driver's licence and insurance and the conversion of all the things you have to do. His insurance company in Quebec told him that they could not disclose to him his driving history, so that he could then give it to another insurance company, because of privacy laws. He explained to them that it was his driving history that they were holding and that he should be able to tell them to transfer it to someone else.

But, no, for privacy reasons, they said, they couldn't do that. He said that seemed kind of ridiculous to him, and they said, yes, it was, but that's what the law said.

[Daniel Therrien]

They were wrong.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

I'm always worried that we're going to create these structures, these laws and regulations, and then people applying them in their offices will misapply them—that's something I've seen—and they will err on the side of caution. They'll do it justifiably. They're trying to protect their organizations. They have privacy officers in corporations and in organizations. I used to be a privacy officer at the HR Institute. They're cautious. Everything is about caution. They don't want to make a mistake. They want to err on the side of caution.

How much of that would impact political parties in the day-to-day activities they have in trying to both identify issues that are important to their supporter base and identify those people whom they don't agree with? I have supporters who don't agree with the New Democrats and the New Democrats have supporters who don't agree with me. I obviously don't want to be communicating with them on an issue on which they don't want to be communicated with, and I'll try to avoid doing that, because I have a finite amount of time.

What do you say to those who make the case that political parties are incentivized already to avoid communicating with those who obviously don't want to speak to them, don't care about the same issues, and are not compelled by the same things? It's a public debate. Whether I'm door-knocking or I'm at a town hall and I'm trying to figure out if Chris and Ruby agree with me or not and whether they are supporters or not supporters, or if I do it on social media or through some other means such as a letter-writing campaign, where do we draw the distinction between what should be private and what is part of the public square or public debate about what is arguably the right of politicians—or not the right of politicians, because we don't have a right to anything—or the ability to understand how our citizens think about a particular issue, and where they are leaning in terms of support or voting? Where's the line?

[Daniel Therrien]

I'll answer by again referring to the experience of other jurisdictions. I do not think the application of privacy legislation impedes the normal work of political parties in reaching and communicating with their electors. This is the experience in the jurisdictions where privacy laws apply. We should assume that in Europe and in British Columbia, technology is used to identify people who may sympathize with a party so that the party's work is efficient. All of this is going on currently in other jurisdictions while parties are subject to privacy legislation.

In terms of the difficulty of the application of laws, and the possibility that because this is complex people will err on the side of caution, I would say that PIPEDA is probably a good tool, to that extent. It's 10 principles. It's scalable to the size of an organization. Small businesses are subject to PIPEDA and do not apply the legislation with the same sophistication as Facebook and Google and Microsoft.

So it's a flexible tool, and I think parties would be able to train their staff in a way to respect the law.

[The Chair, Liberal, Larry Bagnell]

Thank you very much.

Now we'll go on to Mr. Simms.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Thank you, Chair.

I have a quick question for you, Mr. Therrien. It may be a longer question than I anticipate, and if so, I apologize.

In going through the legislation, something came to my attention that I thought was somewhat positive. Under Bill C-76, if a party intentionally misled someone in their policy, which is now to be required under this legislation, there would be serious ramifications. I mean, the leader could face serious punishment. There would be a deregistering of the party, as it's laid out here.

Is that a positive step, to you?

[Daniel Therrien]

It's a theoretically—

[An hon. member]

[Inaudible—Editor] good to know.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Perhaps someone else would like to weigh in; I don't know.

[Daniel Therrien]

It's a theoretically positive step. I say “theoretically”, because the law does not dictate any content for the policies in question.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Sorry, I didn't quite hear you. Could you just repeat that?

[Daniel Therrien]

The amendment or the section that you're referring to is theoretically progress. It would be progress if the offence were linked to a privacy policy with substance, but because the bill does not dictate substance, then parties are able to describe their use of information in fairly vague ways.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Yes, but certainly if the party went against the particular policy that was put up and advertised on their website as such—

[Daniel Therrien]

What I'm saying is that the party can make public a privacy policy that is so vague it will not actually contravene it, and we're no further ahead in terms of privacy protection. So if it was a privacy policy with substance that was contravened, I would agree with you. If it was a privacy policy—

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

If you have a penalty, it's obviously worthwhile to.... It may sound harsh to some to have the deregistration of a party or the sanctioning of a leader, but certainly that's apt, in your opinion.

[Daniel Therrien]

Yes, but always subject—it's a big caveat—to “does the policy have substance?”

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Thank you, Monsieur Therrien.

Colonel Joshi, I was here—I was actually sitting over where Mr. Blaikie is—during the Fair Elections Act as we were going through it. I remember at the time there was a lot of talk about how this was going to diminish the right of democracy, which is in our constitution, for members of the military, and particularly their spouses as well.

You brought forward one of those issues, which is, of course, the SOR. You said in your brief, “In the most recent federal general election, the participation rate of Canadian Forces electors was significantly lower than that of the general population.” Would I be right in saying that the SOR is the main reason why?

[Col Vihar Joshi]

That could be one of the reasons why, absolutely. Some folks may not have changed their SOR at the time the writ was dropped, so they're no longer able to vote in the riding in which they feel the most connection. As an example, let's say you joined in Pembroke and you never changed your SOR. Two or three postings later, when you find yourself in Ottawa, but your riding, your SOR, is still in Pembroke—

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

A lot of the critics back then said a statement of ordinary residence was supported by those in the party machinery who want to support riding choosing. I forget the name of the actual term they they used. Basically they won't allow anyone just to choose a riding as they see fit. I get from your speech that this is not the case here. They feel this is their ordinary residence, that they have family reasons for wanting to vote there, and this should make a difference. Is that correct?

[Col Vihar Joshi]

That is correct.

[Scott Simms, Liberal, Coast of Bays—Central—Notre Dame, NL]

Okay.

In the next election, you're confident, obviously, that this will encourage a lot more people to vote. I remember in 2004 when I first ran, a lot of people in the military voted, according to the polls, but they kept diminishing over the years. I'm assuming there are other factors there too. Was there a lack of promotion from Elections Canada?

[Col Vihar Joshi]

I really can't speak to that. There are a number of reasons that people may not have voted. There could have been operational reasons for an inability to vote in some cases. Not feeling connected with the riding is certainly a reason.