Industry Committee on April 8th, 2024

[Mark Schaan]

The minister has stated an openness to seeing a fundamental right to privacy in the bill, and the views of the minister are reflected in both amendments. I can't speak for the government. I can only speak from the department's perspective and say that we've reflected the wish to have the fundamental right to privacy understood in this bill.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

I appreciate that, but of the 55 government amendments, there wasn't one proposed in this area.

Page 8 of the Privacy Commissioner's 2022 submission on this legislation says:

As the preamble would apply to all the Acts comprised in Bill C-27, including the CPPA and AIDA, adding the proposed language to the section that frames the legislation's intent would help ensure that the best interests of children and minors are prioritized and consistently considered across all [aspects of the act].

If the bill's preamble is amended in this manner, does it affect all aspects of the legislation, including the AIDA?

[Mark Schaan]

I'm sorry, Mr. Chair—

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

There are basically three pieces to this bill. The Privacy Commissioner seems to be asserting here that if you amend the preamble in this manner, the preamble affects all three, but in particular the first and the third. Would that be correct?

[Mark Schaan]

As I understand it, what is being proposed is that a preamble be inserted into the CPPA. I believe there's also potential for a preamble to be inserted into the artificial intelligence and data act. This preamble would inform the reading of the CPPA, and when we come to the AIDA, as I understand it, there are proposals on the table for a preamble to the AIDA, which would inform AIDA.

To the member's question as to whether this informs all three parts of the act, by putting it in the CPPA you are informing the CPPA.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

It's just the CPPA, but not the artificial intelligence part.

[Mark Schaan]

That is correct.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

As it's constituted now without this amendment, would the preamble be included in the final Privacy Act once published and passed by Parliament, or would it not?

[Mark Schaan]

In its current format, no.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

No, it wouldn't. Then from the perspective of the department, what's the purpose of the preamble if, once the bill is passed, it has absolutely no purpose or inclusion in the Privacy Act?

[Mark Schaan]

Courts have often looked to the context in which the overall piece of legislation was introduced and understood. While not being party to the bill in its further carriage as a statute, the preamble offers interpretive value to the courts as to the thinking of Parliament and informs the consideration of its ongoing implementation.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

The impact of putting this into the act would only affect the CPPA. Would it add more certainty or cause a problem with anything else in the CPPA if you put it in? I ask because there's a reason the government doesn't have it in.

[Mark Schaan]

It carries with the bill, so it becomes a part of the piece of legislation, which means that the legislation reads with it, basically, on an ongoing basis. I think inserting the preamble into the bill itself is a very direct mechanism by which to inform its ongoing interpretation, as opposed to the potential that a court look back on the interpretive record. To answer your question, it is a more direct way of ensuring that it continues to be understood in that manner.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Would the government have any objection to that?

[Mark Schaan]

I can't speak for the government. I can simply suggest that I think the preamble, as an interpretive tool, can be important.

One thing we do think about from a technical perspective is that it stays consistent with the overall bill. It should, ideally, speak to only the CPPA portions of the act to ensure that the preamble is informing the act in which it's included, as in it shouldn't speak to other acts or other bills, because that can cause confusion. You might hear some thoughts on that.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

If this goes in but, say, proposed section five, the purpose section, doesn't change, does that provide clarification or contradiction?

[Mark Schaan]

I see no conflict between the purpose and this preamble, no.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Why in the preamble—and maybe you can't answer this—was the...? I'll call out one of the things in this amendment, which is the focus on a very specific issue around personal data with regard to minors and their best interests. MP Vis spoke eloquently to that issue. Why was that not seen to be a priority? In the minister's opening speech during second reading in the House and in my conversations with him, he said the primary purpose of this whole bill was about protecting children's rights. However, it seems that when we go through it, we see there's actually very little reference to that at all. There's just a reference to minors once in the definitions section.

If the government felt that what this bill was doing was protecting children's rights to a greater extent than the existing law, why wasn't that more robustly put in the preamble, the purpose section and various other parts of the bill?

[Mark Schaan]

I think it's important to understand that the escalation of the personal information of minors to the class of sensitive information is an extraordinarily powerful legislative tool. It essentially insists that all parties subject to the CPPA will be held accountable to the degree to which they have put in place appropriate safeguards in their privacy programs for minors' information on the basis that it is, just by its existence, sensitive. A fundamental way in which we've addressed the issue of minors and their information is by ensuring that the level of care and conduct that's afforded to this is quite elevated and significant.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

That's in the existing bill. That's what you're saying. Are you trying to say that we don't need this to do that?

[Mark Schaan]

I think we're talking about two different things. I think we're talking about a preamble that provides interpretive value to the overall bill and highlights, in the Conservative amendment, the important issues related to minors' privacy. However, the bill itself has provisions for the fundamental obligations on the actors that are subject to the law to treat minors' information as sensitive.

They're not in conflict; they're different things.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Can you point me specifically to the clauses? I can't find any reference to minors other than in the definitions section.

[Mark Schaan]

G-5 and G-55 both speak to the fundamental right of privacy—

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

No, in the existing bill.

[Mark Schaan]

In the existing bill, the elevation of children's personal information to the level of sensitive is found in proposed section 62—