Mr. Speaker, it is my pleasure to address this motion by the government to have Bill S-4 go to committee before second reading, which is a rare event in the House. This is a procedure that was made possible for the first time in 1994 amendments. I believe it stemmed from the 1982 McGrath committee's report that said that committees should more often be used at the early stages of legislation to make sure that things are caught and that a wide variety of perspectives are taken into account in drafting legislation and, frankly, to make the role of MPs more meaningful than is often the case when a bill is studied only after second reading in committee.
As we know, in committee after second reading, and after hearing any amount of testimony from witnesses that could suggest serious problems with a bill, the amendments are often extremely constrained by the rule that they must fit within the principle of the bill. Quite often that means that the principle is understood by the chair or the legal staff advising the chair as simply the principle of a given provision, and therefore, an attempt to work more broadly than the narrow purpose of a given provision is often ruled out of order.
Beyond that, I have found so far in committees, since arriving in the House, that there seems be a reluctance at the moment, on the part of the advisers to chairs, to understand that bills can often have multiple purposes and not just a single purpose. Therefore, in the end, after second reading, committee work often really is an exercise in frustration, because a lot could be done to perfect a bill that is technically ruled out of order due to the fact that we have to work within the principle of the bill as voted at second reading.
It is great that this bill is going to committee before second reading. It will hopefully allow, in the spirit of what this procedure is all about, a full, frank hearing, from all kinds of witnesses, about the problems I hope the government understands are in this bill. I hope this is also the reason the minister has decided to send it to committee before second reading. There can be true dialogue and engagement among MPs, obviously with the government watching what is going on and giving its input through government MPs, so that this bill is taken apart and rewritten in the way this procedure would allow.
I myself stood in the House to move unanimous consent to have Bill C-23, what New Democrats called the unfair elections act and the government called the fair elections act, referred to committee before second reading, exactly for the reasons I have just given. There were so many obvious problems in the bill. Not sticking to the principle in the bill and working collegially across party lines would have benefited the study of that bill. In retrospect, New Democrats realize how true that was. Although we got serious amendments passed, with pressure from backbench members of the government suggesting changes that helped us in our efforts, that bill would be much better if it had gone to committee before second reading.
There is another procedure that, in the spirit of openness, I am hoping the minister might consider. To date, it has not been the practice of the government to table opinions about the constitutionality or charter compliance of a bill. Given the real concerns that exist with respect to warrantless access to information that is contained in this bill as kind of a compendium bill to Bill C-13, I would ask the minister to please consider, for once, having the Department of Justice table a written opinion on the constitutionality of this. Why does it think that the Spencer judgment coming out of the Supreme Court of Canada does not apply or, if it applies, that the bill is written in a way that justifies it under the charter?
So often in committee there is minimal to no good testimony from the civil service side on why, supposedly, the Minister of Justice has certified that a bill is in compliance with the charter. We know that the standard for the minister doing that is a very minimalist standard.
I will read from the Senate testimony on Bill S-4 from Michael Geist, of the University of Ottawa, to tell the House why having that additional procedure as part of the referral to committee before second reading would be useful. He says:
Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both [to] past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).
That is an extremely good summary of a core problem with the bill in terms of the fears it raises that it has gone too far. It would purportedly create an updated regime to protect privacy and in the process would potentially ram through new problems with respect to Canadians' privacy.
I would like to now, in my last couple of minutes, go over a few points that I hope come up in committee.
I wish to thank a constituent, Mr. John Wunderlich, an expert in privacy law, who worked with me on the weekend to better understand the bill. These are points that I hope do have discussed.
In paragraph 4(1)(b) of the act, the definition of who this would apply to would move from just employees to employees and applicants for employment. In that context, this leaves hanging the question of how much or how little this would apply to companies whose business is to conduct background checks. The committee should solicit feedback on this. In my view, the background check function in the employment sector is done far too often and too deeply and already constitutes a systemic privacy invasion in the employment sector. Therefore, this extension needs to be looked at.
The next thing is the definition of valid consent. While it is welcome, because it brings clarity, the committee should note whether the current systems asserting consent on the web actually provide meaningful information to web surfers about just how many entities will be given access to either some or all of their personal information. Right now, there is a real risk that so-called valid consent, as outlined in the bill, would actually piggyback on the systematic sharing of information that people have no idea is being shared. The act could become a smokescreen behind which individual profiles were built and shared across businesses.
I have already spoken about the potential for the warrantless invasion of privacy because of the fact that organizations could seek information from others when they are simply investigating breaches of agreement or fraud. We should keep in mind that when they are investigating fraud, it is not just in the criminal context. All of this involves civil questions as well. An example is fraudulent misrepresentation.
The “real risk of significant harm” test for companies in particular to decide whether they are going to inform the commissioner and at another stage inform persons of breaches of privacy is a problematic standard in the sense that it is actually very general, and it is probably too low. There should be a presumption for disclosure to the commissioner, and it should be left up to the commissioner to either determine, or assist the company in determining, whether this is significant enough to let the persons whose information was released know that it happened. At the moment, it is an entirely discretionary system, based on a very vague standard, which may mean that data will be breached without people actually knowing it and being able to take the measures necessary to protect themselves.
Those are only three of the more specific concerns that need to be looked at. There is a lot in the bill.
I have a final comment, and it may be a rather strange one. I am looking at my colleague across the way. The privacy legislation from Alberta should be looked at very closely as a reference point for whether the government has gotten certain things wrong. That province has gotten things right.