Mr. Speaker, like many MPs and members from the public, I listened to the various speeches on Bill C-11, An Act to promote safety and security with respect to human pathogens and toxins.
I found that some of the interventions being made by my colleagues addressed not only the substance of the bill itself, but one very important and perhaps insufficiently appreciated issue. That is the matter of the Privacy Act and the issue of the Privacy Commissioner offering her views for the benefit of the committee that studied the bill.
I had the good fortune to be associated with one of my colleagues who had a lot of the information immediately at hand. It seems to me that in a situation such as this one, where we are dealing with an extremely important bill and one that is to be viewed in the context of a potential pandemic that is afflicting the world, and I refer to the swine flu, we would take all measures necessary to ensure that we would be adequately prepared, but also that we would follow the appropriate procedures so that individuals will be protected from incursions on their privacy as we go forward.
I listened as my colleague from Winnipeg North waxed very aggressive, I might even dare say eloquent, on the importance of having this particular bill dealt with expeditiously in the House. Like every member in this place, she is of course entitled to an opinion, valid or less, according to the view. But it struck me as I was listening to her that she was making an argument for ensuring that the bill would be receiving immediate and quick attention and approval in the House, even though there were members from that committee, and I guess I can say it because they have been standing up all day on this, the members from the Bloc Québécois, who disagreed with some of the substance, but equally important, on the procedures followed, in order to ensure that the bill would reflect all the needs of Canadians everywhere.
I think she kind of regretted that the Bloc Québécois members were employing a tactic that had in fact been used by her own party on other bills, specifically on safety management systems, a bill that suggested that we would impose a particular ethic, a culture of checks, balances and due diligence on the people who are providing a service.
In this instance, perhaps we would say that this is even more serious. As the safety management systems involve the aviation industry and those who provide carriers and other vehicles for air transportation, whether it be passenger or cargo, of course it involves the potential for putting human life at risk. This is no less so, and perhaps some would argue, much more so.
I found it really interesting that the arguments to rush forward on the bill ignored a letter sent by a member of the government side, who is in fact the chair of the committee dealing with the bill, the Standing Committee on Health, to the Privacy Commissioner asking for her input on the bill.
Note that I said the Privacy Commissioner sent a letter inviting reaction. She did not say that she was invited to appear before the committee to offer her opinion to address issues that might be raised by members of the various parties, including the government party, to address those issues that related not only to the substance that was being discussed but to the procedures that lead to the consideration of the substance and the consequences of that process.
The chair wrote a letter, and in a letter dated March 11, 2009, received a response. The response said:
We would be pleased to appear before you to discuss the comments we make in this letter....
The Privacy Commissioner did not get a response to appear.
The Privacy Commissioner is responsible for two federal privacy laws: the Personal Information Protection and Electronic Documents Act, otherwise known as PIPEDA; and of course the Privacy Act itself. The issue here is that it applies to government institutions, agencies and crown corporations, as well as the lab in Winnipeg.
This is not designed to in any way diminish or take away from any of the great work that is being done in that lab or in fact in other places that are concerned with people's health.
That letter is available to everybody in that committee, because it was distributed to everybody in the committee. I do not think there is any need for me to table it. It is already a public document, and certainly everybody who wishes can get it from the committee and from the Hansard.
Let me just quote this one little item. The Privacy Commissioner says, “Our suggestions for improvements”, which according to some of the interveners were not even considered, because they were not accepted as amendments even though they were proposed by other members, “are aimed at ensuring the appropriate balance of privacy rights and regulatory powers as well as transparency, notice and accountability to those officials subject to the legislation and to the public”. It is as simple as that.
I do not serve on that committee. It is not for every member of this place to serve on every committee, but when we come into this House and get the benefit of the deliberations of the various members who do serve on these committees, we need to take that into consideration. If there is a vacuum, if there is a lapse, if there is something missing in the consideration or something left out, that is why we have report stage and third reading considerations.
So in this third reading consideration, I, like some of the other members, would like the House to reflect on what was left out of the deliberations or at least put over to one side.
The Privacy Commissioner, remember, is responding to a written request by the chair of that committee and said, “We had hoped to see a privacy impact assessment (PIA) to understand how any privacy risks in this Bill had been mitigated”, and as of March 11, she adds, “we have not yet received one”.
If one is going to consider legislation that deals with toxins, human pathogens and their impact on the public health of all Canadian citizens no matter where they are, certainly one needs to consider as well how that information is gathered, the impact on the individuals from whom that information is derived, and what are some of the other considerations that flow from it.
The Privacy Commissioner, an officer of this House, established to help members of Parliament in their deliberations in the public interest, then goes on to say, “Our Office should be seeking PIAs”, or privacy impact assessments, “well before the decisions have been implemented so we can provide feedback early in the process”.
It seems reasonable. Yet she says, “Without having met with the officials,” and I might add from a personal perspective, without apparently being provided the opportunity to meet with officials, “who developed this Bill and without having received a PIA, it is challenging for us to understand the full privacy implications of Bill C-11, such as the scope of the application of this proposed legislation to patient information”.
If the Privacy Commissioner, with all the resources at the disposal of that office in order to provide members of Parliament with that advice, is unable and unwilling, perhaps, to provide speculative observations, why should a member of Parliament rush to make a decision in the absence of such information? In fact, the Privacy Commissioner goes further and says, “We would appreciate participating in a consultation process”, but that has not happened.
She addresses clause 38, which gives the minister certain powers in order to derive the information required, obviously through his or her officials, and she observes that subclause 38(1) could be improved. Again, without having had the benefit of the consultation and without having had access to public health officials, she says this is a concern, so please address it.
Some of the members from the Bloc party today gave us an indication that it had not been addressed, or when it was, it was put over to one side, regrettably, because the Privacy Commissioner says, “We would suggest that reasonableness should inform the Minister's opinion and that the personal information should be 'directly relevant'”, and not refer specifically to personal information. In fact, she says that information should be made anonymous in order to accomplish a stated goal.
The Privacy Commissioner went even further than that. She took the trouble to provide additional input and observations on clause 41, which offers to an inspector the kinds of powers that we think reside only with the minister. However, even if it is in the effort to amass information that may be used for the public good, we do not know because we do not have the cause and effect consequential action of some of those decisions.
For example, she says:
the inspector's powers to collect documents, materials and information, may well extend to the examination and collection of personal information and personal health information of individuals and patients.
That might serve a purpose, but she says:
We are concerned about the protection of patient information and transparency around this process to the public.
We have left out an individual who has the expertise and the resources to define for members of Parliament the shortfalls of the legislation, the potential pitfalls, and at the same time, of course, to suggest whether they are going in the right direction.
She goes further to say that clause 67 of the bill presents a problem with respect to interim orders for the minister. She says, “this mechanism is of concern as it could diminish controls over personal information”. In other words, once that information is out, it is out in the public domain and individuals from whom it has been derived no longer have the safety and security afforded to them under the Privacy Act and under PIPEDA.
She says the externally produced documents that flow from this “could result in a reduced level of control over extremely personal information”.
She did all of this on March 11, underscoring, underlining and emphasizing that she and her office would be prepared to be engaged in the public consultation process, in the consultation process being conducted by the Standing Committee on Health, and offered those services.
She said in that letter, thank you for calling us; here are our first thoughts, but let us sit down and discuss this, because we have not had a chance to speak with public health officials or with officials mandated to address this issue.
The chair wrote again and received a response on March 30. That is exactly one month ago today. In that letter, the assistant privacy commissioner said she wanted to follow up on the chair's letter concerning Bill C-11, the Human Pathogens and Toxins Act. In order to avoid confusion, she further said, “Regarding the confusion as to prior consultation”, because obviously she herself was very clear, “there seems to have been a preliminary exchange of emails between the Public Health Agency of Canada, PHAC, officials and some of my officials in May 2008”.
There was an exchange of emails. She went on to say, “Even though I have offered you my expertise and my resources now”. Subsequent to May 2008, guess what:
Overall, however, we did not have many details and did not receive materials, other than what was then Bill C-54, at that time.
In other words, “You have not availed yourselves of the opportunity to engage us deliberately in consultations as a committee or as a department”. The letter says, “get us engaged”. Did the committee get them engaged? We know the committee deliberated on the bill, entertained some amendments, rejected some, unhappily according to the Bloc members, happily according to the government members, expediently happily for the NDP members and we ask why.
The assistant privacy commissioner took the trouble to say, “We also learned that the main objective would be to collect information about people who work in laboratories to ensure that they meet security requirements,” which is all good, “and that the security screening will be consistent with the processes that are already in place”.
These are assurances that they are given verbally or that they read are to be provided. She went on to say something that I think should cause every member in this place some concern:
We recognize that the intent of the legislation is to deal with the personal information of laboratory workers; however, we still have concerns that there is nothing in the Bill to restrict the collection of ancillary personal information, such as patient information.
Another ancillary collection would be the personal information about laboratory workers' family members, should they come into contact with a regulated pathogen or toxin. A member of a patient's family has no privacy protection under this act. She went on to say, “As well, we are aware of the potential for function creep,” a term that was made popular in the House by what was then an opposition party that talked about taxation creep, “and would therefore prefer to limit”. I want to repeat that part. She said:
We would therefore prefer to limit the collection of personal information. We look forward to these issues being addressed in the privacy risk assessment work to come.
I am sure those who are following the debate today, as I was following it from the lobby and from my seat in this place, are asking themselves, has that privacy risk assessment been done? She repeated for emphasis, “We believe that clause 67...may diminish controls over personal information,” and that a reasonable grounds test would be helpful in this situation. Did it take place?
She went on to say that the agency, in her view, “currently has sufficient information to engage in a high-level privacy risk assessment in anticipation of the more formal privacy impact assessment process”. So what has been holding everything up? Her closing words, in a little bit of frustration, were that she looked forward to meeting with public health officials in order to address these issues.
I can only add that addressing those issues would enhance the views of members of Parliament about how to deal with this legislation at this stage of its progress through Parliament, and I hope we get it.