Industry Committee on March 24th, 2015

[Prof. Avner Levin]

I think the clause is good because it provides greater clarity. If we are going to stay with the regime of consent, you want something that is clearer rather than more vaguely worded. My broader concern about where Bill S-4 is right now in 2015 is that we have seen that all of these ideas of consent are not actually effective. We need to see much stronger protections in other areas, in terms of regulating use and disclosure.

But I think the clearer language is a very welcome step, from my perspective.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Brown, Ms. Romanko, do you have any comments to make on the content of the article?

[Catherine Romanko]

I don't think I can comment on the clause, but I would say that one thing to bear in mind is that someone who is not mentally capable at law cannot provide valid consent. What protection that adds is probably none.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Very well, thank you; that is a good point.

I imagine you were going to say the same thing, Mr. Brown.

Mr. Brown, Ms. Romanko, I would also like to ask you a question on the proposed amendment to allow the sharing of information without consent in cases of financial abuse. The provision reads as follows:

(iii) it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the ability to prevent or investigate the abuse;

I don't know if you will be able to answer my question, but I can't think of a situation where the person's consent might have an adverse effect on the investigation. Based on your experience, perhaps you could tell me when this provision might apply.

[Douglas Brown]

When you see cases of financial abuse, quite often the first step is that the individual who is doing the financial abuse is gaining the trust of the person we're trying to protect. The reason that this clause is important is that quite often you will have a situation—say it's a senior who goes to a bank—in which, if you inform the individual that “we have a concern that you're being financially abused”, the first person the senior will go back to is the person who is actually doing the abuse. In order to break that cycle, it's very important in some situations for the financial institution to be able to report to the government institution, so that the investigation can be done outside the influence of the person who may very well be perpetrating the financial abuse.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

I'd like to go back to the issue of consent. I know I am bringing it up a lot, but it is a big concern.

One witness suggested that we limit or prohibit communication when seeking personal information regarding minors or seniors. This is similar to what Mr. Levin proposed. In my opinion, this might prevent people from having access to certain services. I don't know how we could deal with this question.

I would like to hear your comments on this, Mr. Levin or Ms. Romanko.

[The Chair, Conservative, David Sweet]

Let us have a comment, as brief as possible, from one person.

[Catherine Romanko]

I'm not sure I can comment on that.

[Prof. Avner Levin]

I would just like to say briefly that this is an issue that is outside of the bill, because it has to do with how you identify and de-identify data. It gets into technical issues and that is a whole other separate conversation.

[The Chair, Conservative, David Sweet]

Thank you very much, Mr. Levin.

We'll now move on to Mr. Lake.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Thank you, Mr. Chair.

Thanks to the witnesses for being here today.

It's interesting that as we do legislation there always seem to be three categories of potential amendments. Everybody has suggested modifications to the legislation. You either have people who want to add something that isn't in it that they think should be in it; or you have people who take a look at changes that are being made and don't agree with them and want them not to be made; then, there are some technical changes, as almost always someone will suggest some kind of technical wording.

It's interesting that the first category in a sense seems to fit, Catherine, most of what you have had to say. You talk about some clarity around provincial authorities, but I would argue that the legislation, in I think proposed subsection 26(1), says:

The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations

This includes, as it is written in the existing act:

(a) specifying, by name or by class, what is a government institution or part of a government institution for the purposes of any provision of this Part;

So we have the ability to do that through regulation and I think you would be satisfied with that as a mechanism. You just want to make us aware of the need for some clarification there, I believe. Is that right?

I was interested in your second recommendation, deleting “next of kin” as your number two area of refinement.

Why would you do that?

[Catherine Romanko]

The deletion has a two-fold purpose.

“Next of kin” don't have any entitlement under law to personal information. “Next of kin” are also often the perpetrators of abuse. Including them as one of the options for financial institutions to report to perhaps tips the balance against protection and the privacy rights. You're balancing the adult's right to privacy against the need to protect, and I think the balance is tipped.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I find it interesting that you would give rights for an appointed guardian to be informed about something, but not for an actual family member, which is an interesting challenge. I say that because I have a 19-year-old son with autism—full disclosure. If someone got close to him and were somehow financial abusing him and taking advantage of him, I would want to be the person called to find that out first, if I didn't know it. It would seem odd that we would exclude me from that list of people who would be informed.

[Catherine Romanko]

Right. I appreciate that, and in most instances, that....

I suppose one of the balances here is that if the language is left in the bill, the understanding then would be that the financial institution would have a broader range to exercise its discretion, and presumably would not report to someone they suspected was the abuser. I still think there is a risk there. I think there is a distinction, as you raised, with respect to the authorized representative, in the sense that an authorized representative would have legal authority—granted either by the individual themselves, when they made a power of attorney, or when they made a representation agreement under British Columbia law, or when they were appointed by the court to act.

In those instances, they're guided by law. They have a fiduciary relationship with the adult. There's an extra set of rules governing their behaviour. Yes, they too go off the rails. Yes, they too are sometimes the perpetrator. But I think at least there's greater.... Again, it's a question of balancing the right to privacy with the need to protect the adult who may be vulnerable. It seems to me there is greater justification to allow a reporting to someone who has legal authority than to someone who has no legal authority to receive the information about the adult.

That said, I think it is more important that this provision proceed than the amendment to next of kin be made. In other words, I wouldn't want to stop that section from being enacted simply because of the next of kin issue.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Okay.

Your third point was on neglect and self-neglect. I think that sort of fits into that first category of things that might be nice to consider down the road at some point, but right now, in the interest of passing important legislation, we can probably have that discussion a little bit later.

I guess further to that, Mr. Levin, I think your first point—I always have a tough time jotting down all the points and getting them bang on—was about adding order-making powers for the commissioner. It's not in the legislation at all, not a change, but just something you would add if you were writing legislation. It's something that you would like to see added.

You know, we've taken pretty significant steps forward without that specific provision in the area that you're concerned about. Is that accurate?

[Prof. Avner Levin]

Yes, you gave them the ability to do compliance agreements, which I think is a lot better than what they have right now, which is nothing.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

But you would argue that maybe the next time this discussion is happening about this particular legislation, we might want to consider order-making powers.

[Prof. Avner Levin]

Well, I would argue that you should consider it now. You can decide what you will decide.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Okay. Sounds good.

You also I think talked about deleting paragraph 7(3)(c.1).

[Prof. Avner Levin]

Yes.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Again, that's not something new in the legislation. That's something that's already existing in the legislation. If you were the minister, you would be moving to make that part of what we're doing. You'd add that to the steps being taken.

[Prof. Avner Levin]

I would delete it because of the Spencer decision that happened in the summer. I would make it clear that the government wants law enforcement agencies to get judicial authorization when they request information, because that's how I understand the Spencer decision.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

So I imagine that, moving forward, regardless or whether this legislation passes or not, you'll be advocating for that in the next iteration. Okay.

Was it paragraph 7(3)(d) that you said to leave as is?

[Prof. Avner Levin]

Yes.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Could you maybe explain that?