Evidence of meeting #45 for Public Accounts in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was walsh.
A recording is available from Parliament.
Liberal
The Chair Liberal Joe Volpe
Excuse me, but there's a series of questions there, some of them directed to Mr. Walsh. As per our discussion earlier on, about responses that relate to advice that we might get from our counsel, we'd refer it to the in camera session.
So Mr. Walsh, I'm affording to you the opportunity to say you'd prefer to answer that later. And if you do exercise that option, then I'll go immediately to Madame Bernier to answer the questions that Mr. Shipley asked of her.
Law Clerk and Parliamentary Counsel, House of Commons
Thank you, Mr. Chairman.
I think the question is of a general nature, and I'm quite comfortable answering it, hopefully adequately for the member's purposes.
Let me first say that I am in virtually 100% agreement with Madame Bernier regarding the position of this committee relative to the Privacy Act.
First, the Privacy Act itself does not apply to the business of this committee in a legal, direct sense. But she has articulated, and I don't need to repeat it now, the general public interest principles that apply certainly in her domain and relative to the Privacy Act, the foremost principle being the public interest.
Now, this committee, as a parliamentary committee, of course serves the public interest, but it serves the public interest for a different purpose, as opposed to the Privacy Commissioner, who serves the public interest for the purposes of the Privacy Act. This committee has a larger public interest, and that's why committees are not governed by statutes directly. They, in my view, ought to be mindful of the public interest and they ought to exercise their discretion in a manner that's as much as possible consistent with the public interest. But what that public interest is in a particular case, what action the committee should take in a particular case, is purely for the committee to determine; it's subject to any counter rule from the House, of course, but it's for the committee to take.
There's no legal obligation in the usual sense upon this committee. There's no way anyone can go to a court and get a court order telling the committee it can't do something. The committee has full discretion to exercise its powers as it sees fit.
But I would agree with Madame Bernier that there is, in my view, for all committees and all business of committees, the constitutional obligation, if you like, but more of a moral obligation, to respect and serve the public interest by what you do. I would argue that personal privacy has become a well-established value in our society. Insofar as all of us hope that all public authorities and institutions, including committees, respect the rule of law, the rule of law is premised on some values, and one value is privacy. I would hope that every committee that may see themselves looking for information of a personal nature would pause and reflect on whether they must have that information or whether, in fact, they can serve their purposes without causing the personal information to be disclosed. But it's the committee's call in every case.
Liberal
The Chair Liberal Joe Volpe
Thank you, Mr. Walsh.
Madame Bernier, I'll try to give you a chance to answer some of these questions a little later, but I have to go to Mr. Christopherson.
Mr. Christopherson, I had to cut off your last session at Madame Bernier's potential response. You can proceed from there.
NDP
David Christopherson NDP Hamilton Centre, ON
Thanks, Chair.
Perhaps she can recall the question back then; I was asking her to just help me understand the difference between private information, that was there when the file started, versus privacy information that became apparent after the file was opened.
Once you've answered that, please feel free to use the rest of my time to answer other questions that have been put to you.
February 15th, 2011 / 4:45 p.m.
Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada
Thank you.
Let me explain the investigation process, then. We receive a complaint. There is hardly any information at the start. The complainant will say, for example, “I fear that my personal information has been unduly disclosed” and will give us some evidence that they think.... For example, they could have been told that someone has received a letter containing personal information about them from someone else. We could have an inmate, for example, who would have received an inmate's report of someone else, and therefore would come to our office and say that they have this information that makes them believe there was a breach of their privacy.
Therefore, we start with that. We have investigators who will interview people and who will gather information through these interviews and thus constitute a file, then do an investigator's report with a recommendation of finding, which therefore concludes with a finding for me to sign.
So the issue of the information that is there, whether it is related to the investigation or not, doesn't really arise, because all the information is truly gathered exclusively in the process of conducting the investigation.
Liberal
The Chair Liberal Joe Volpe
Mr. Christopherson, you still have a minute and 10 seconds.
Is it still your wish to share that time?
NDP
David Christopherson NDP Hamilton Centre, ON
Yes, I could share.
If you want to use my time to answer the questions, I'm fine with that.
Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada
Well, there was a question as to how the information could be secured. Indeed, there are many ways. For example...I mean, they are well known, but simply to recall: using paper, using sealed envelopes, and using a very limited number of copies and numbered copies so that there is a tracking system. The usual safeguards that apply to secure information, Mr. Chair, would therefore apply here.
Conservative
Terence Young Conservative Oakville, ON
Thank you, Mr. Chair.
My first question is for Mr. Walsh.
Thank you for being here today.
Mr. Walsh, can you imagine any way that Parliament should make an affirmation of contempt against a person who has never legally been served a summons under these conditions?
Law Clerk and Parliamentary Counsel, House of Commons
Mr. Chairman, it's a hypothetical question, of course, but it has some relevance to the facts, as I understand them, before this committee. It is difficult, in my view, speaking as a lawyer who is accustomed to the process in the courts. That's not determinative of the issue by any means; I don't mean to say that the courts are your model, but it is out there, and the public expectation is somewhat informed by the usual practice in the courts.
It is usually the case that you don't take action against someone without having given them notice of your intention to do so. My real view on that is that this committee puts itself at risk of appearing to not respect that rule if it were to take serious action against the individual here without giving formal notice to the individual of its requirement that she appear in front of this committee.
Conservative
Terence Young Conservative Oakville, ON
Thank you.
In your view, how would such an action encroach upon the individual's constitutional rights?
Law Clerk and Parliamentary Counsel, House of Commons
I don't believe it's a matter of constitutional rights as such. If you're thinking about the charter, the charter does not apply to the House proceedings and committee proceedings as such.
Conservative
Law Clerk and Parliamentary Counsel, House of Commons
All right. In terms of natural justice, that really is a principle that might apply to what I just said. It's a sense of natural justice that you don't do something against someone--against the person of someone, certainly--by going out to arrest them or apprehending them without having afforded them an opportunity to get notice that they were required to do something, failing which they may be arrested. That's all I'm saying.
If that were in the repertoire of the committee and the House to take action against her of that kind, I would think that natural justice would require that she be personally notified that the committee expects her to be here and that failure to attend could have that result.
Conservative
Terence Young Conservative Oakville, ON
Thank you.
My next question is for Madame Bernier.
How important do you believe privacy is to the efficacy of the Public Servants Disclosure Protection Act?
Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada
I think the wording of section 44 of the disclosure act shows that it is crucial to its functionality. Without that confidentiality, clearly Parliament believed that the regime would not be able to function.
Conservative
Terence Young Conservative Oakville, ON
Based on your experience, how often would public servants who feel conflicted in their jobs report the source of that conflict if they believed their name might become public unrelated to that report--
Liberal
The Chair Liberal Joe Volpe
You're going to have to try to answer that a little later.
Mr. Bains and Mr. D'Amours, I understand you're splitting your time.
Liberal
Navdeep Bains Liberal Mississauga—Brampton South, ON
Correct. Thank you very much, Chair.
Mr. Walsh, you clearly indicated that you will do your best to answer questions that you think are of a general nature. If you are able to answer these, that would be greatly appreciated; if not, hopefully you can do so in camera.
First, I just want to get a clarification on the point you made a few times with respect to the service of a summons. You're saying that it's not an issue of enforcement but an issue of delivery: namely, did the person actually receive it.
In your opinion and from your position, does the fact that we have Ms. Ouimet dealing with her lawyer, through the chair, indicate that she has been served? Clearly, from my point of view, the fact that she is acknowledging that she needs to come to committee indicates the fact that there's recognition on her part, or an understanding on her part, that she's been requested to do so.
Obviously I can outline the various attempts we've made, but in your opinion, in light of the fact that she's dealing with her lawyer, through the chair, has she been served?
Law Clerk and Parliamentary Counsel, House of Commons
The service could be effected upon her through her lawyer. If her lawyer has instructions from her to accept service on her behalf, then delivery of the summons to her could well be taken--again, in the usual practice, from the context of the courts--as service upon her. But he would have to have instructions from her to authorize him to accept service for her for that to be the case.
Liberal
Navdeep Bains Liberal Mississauga—Brampton South, ON
Okay. I'll come back to that point.
My second question is with respect to the point you made about the fact that this committee has an obligation to do everything in its power to give the person the opportunity to be served or to be given notification. If the person is being evasive, then we have to look at other steps.
We've been dealing with this issue since the Auditor General reported on December 9 with a scathing report about Ms. Ouimet's conduct and her office's conduct. We've had numerous committee meetings. We've called her house a few times. We've sent letters. We've asked her to be summonsed.
In your opinion, do you think she's being evasive?
Liberal
Navdeep Bains Liberal Mississauga—Brampton South, ON
If it's not appropriate, we can do this in camera.