INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 23, 1999

• 1534

[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I'll call the meeting to order. Pursuant to the order of the day, we're continuing from this morning.

What we'll do, Mr. White, is continue as we have been until we get to clause 18. Hopefully by then it will have arrived. I see that the Reform assistant is here. Maybe he can find out where the form is.

(On clause 13—Contents)

The Chair: Mr. Lastewka, I understand there are amendments, beginning with G-18.

Mr. Walt Lastewka (Parliamentary Secretary to the Minister of Industry, Lib.): Thank you, Madam Chair. I'd like to move item number G-18, and I'll be glad to speak on it.

The Chair: Do you want to speak on that after—

[Translation]

Mrs. Francine Lalonde (Mercier, BQ): On a point of order.

[English]

Mr. Walt Lastewka: Thank you, Madam Chair.

The Chair: Just a minute. Is that a point of order?

Mr. Walt Lastewka: I haven't said anything yet.

The Chair: Madame Lalonde has a point of order.

• 1535

[Translation]

Mrs. Francine Lalonde: Yes, Madam Chair. We left this morning after what happened, went to ask for advice and now we are back. I would like to pick up where I was rather abruptly interrupted this morning. That was a violation of my rights as a parliamentarian. I would ask that you recognize those rights which I am fully entitled to, as was confirmed to me when I sought advice. I would therefore like to pick up where I was interrupted this morning when a vote was called that should never have proceeded. I am asking the Committee to respect my rights, as has been my experience in other committees, and has certainly been your experience as well, as parliamentarians, in other committees, whether you were a government or opposition member.

It would not reflect well on the Industry Committee not to recognize parliamentarians' rights. It's not a question of being nice or having a nice time; as parliamentarians, we have certain rights. If we abandon those rights, whoever we are and where ever we may be, this House, and this Committee, which emanates from that House, will no longer reflect the democratic process, although we know that that process does not always work in an optimal fashion. So, with all the respect I am capable of demonstrating, I would ask you to revisit your decision and allow me to continue to debate my motion. You have the power to do that and I therefore respectfully make that request.

[English]

The Chair: Mr. Keyes, do you have any comments on the point of order?

Mr. Stan Keyes (Hamilton West, Lib.): Thank you, Madam Chair.

First and foremost, as I see it, I guess the question has to be asked. Of course, it's the chair's decision. The chair has ruled on this particular issue being brought to the table again by the member from Mercier.

I don't have a problem with it. I think there should be flexibility in a committee when colleagues come together to try to iron out differences or find some leeway, something less than a let's-follow-the-rules arrangement that they have between each other. We're all reasonable people and we're prepared to hear the comments, I think, although maybe I should speak in the first person. I'm prepared to hear the comments that Madame Lalonde is prepared to bring to this table on her issue, which is a motion that would put this bill down or defer it.

Being reasonable means me giving my okay that she can have her day in committee, as it were, to make her points. At the same time, that does not mean being able to abuse the particular opportunity to spend hours filibustering the bill. If Madame Lalonde is prepared to say she needs about half an hour, 45 minutes, 10 minutes, or whatever the case may be, to make her points on her motion, then I'm prepared to entertain that. But if she's not willing to say how long it will take, within some timeframe.... I understand it's difficult when you're making a speech with the passion Madame Lalonde brings to the table and that sometimes these things are hard to judge in their length.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair.

• 1540

I, too, have rights. I believe very strongly in working together. Some don't. I think I have a right to at least hear something clear.

Madam Chair, we have legislation that was tabled in the House of Commons of Canada, we have legislation that has been referred to the Standing Committee on Industry, and we have legislation that we all agreed needed improvements from time to time. As I mentioned earlier, I've taken that opportunity. As I said to the committee here before, we would table amendments in order to improve the bill after hearing many of the witnesses, and we have done that.

I reference Mr. Jones and I reference Mr. Jaffer. As we looked at various amendments, we tried to capture what we were trying to get across, and we've combined that into government amendments. I thank them both for allowing that to happen, because we all had the same intent: we wanted to improve the bill. I believe that's where I have a right and privilege to carry out my responsibilities as a parliamentarian.

I have no problem in hearing Madame Lalonde on her point of view. I don't agree with it, and I don't agree with a number of things that she said earlier, but she has a right to speak. But I don't think she has the right to speak forever. I know that's what we're into now. If her intention is to carry on, to filibuster, to delay, to not make improvements, then I am totally against it, Madam Chair, and I would ask for your ruling on that.

[Translation]

The Chair: Mrs. Lalonde, would you like to answer Mr. Keyes and Mr. Lastewka with respect to the time you intend to spend debating the motion?

Mrs. Francine Lalonde: Madam Chair, I listened to what my two colleagues had to say and I want to thank Mr. Keyes for his comments. My motion is in order and Standing Order 116 allows me to debate it for as long as I require. I will not deliberately try to take more time than necessary, but I do want to take all the time I need to say what I have to say.

I'm sure you can understand that this is not a personal matter; it is a matter that was debated repeatedly by people who came before the Committee. Some supported one view, while others supported another. If the Canadian Bar Association itself was unable to take a single position, that certainly suggests that there is a real problem. And you have to decide one way or the other or at least try to solve this problem, taking into account the needs of both Quebec and the other provinces. There is no other solution.

That is why I am addressing the Committee with the utmost respect and asking that I be allowed to continue to try and convince you. I know that if you proceed with the clause by clause consideration until it is passed, it will not come back to the House. The Minister has the time to go and consult the provinces and Quebec. We have the time to try and make some arrangement to harmonize the legislation. Why not take advantage of that available time? Why run the risk of constitutional challenge, of more debate and of a disagreement? Why?

[English]

The Chair: Madame Lalonde, with all due respect, I want you to speak directly to the question I put to you, which is in regard the point of order. I think you've already answered that you're not willing to respect a time limit.

Madame Jennings.

[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I just have one thing to say. With all due respect, Madam Chair, I did not agree with your decision to entertain this motion. I still do not agree with that decision because I believe that its very content rules it out of order.

• 1545

This Committee does not have the power to repudiate a bill, regulation or other matter the House has given it a mandate to review. It must hold public consultations and proceed with clause by clause consideration. That is our responsibility.

In spite of that, I would be prepared to let you continue your presentation provided that you specify, as my colleagues have already asked of you, how much time you will be requiring. I'm sorry, but I have no interest in listening to you drag out a debate on a motion that I consider out of order. If you can give us an idea of the time you will need to present your arguments, I might be prepared to listen to you. Otherwise, I refuse to listen to arguments about a motion I believe is out of order and whose very substance I totally disagree with. I won't even address the matter of the deadline for tabling such a motion.

[English]

The Chair: Mrs. Barnes.

Mrs. Sue Barnes (London West, Lib.): Thank you, Madam Chair.

I don't think the issue was whether a motion was in or out of order earlier today. The fact is that the chair has already ruled. I am quite content and very happy that our colleagues across the way have rejoined us, and I would encourage them to participate in the debate as we go through the bill. We're at a certain stage now at which they haven't been present, but we certainly welcome them back. I know they participated throughout these hearings, and I would encourage them to join us in going through clause-by-clause right now. We're at amendment G-18. That's the last thing I know. My concern is that we get moving. We've already addressed this area at one point, and I'd be very pleased to be able to engage clause by clause.

[Translation]

The Chair: Mrs. Lalonde.

Mrs. Francine Lalonde: Madam Chair, I want to thank my colleagues for their comments, but I know that this motion was in order. We checked with the clerk...

[English]

The Chair: Madame Lalonde, just so you know, the clerk doesn't have the right to rule a motion in or out of order. The clerk can only give advice on whether she believes it to be in or out of order. Once it's tabled with the committee, the clerk should not be telling people whether things are in or out of order. With all due respect, as the chair of this committee, having seen that it was already on the agenda, I allowed you to proceed this morning. I had my doubts about the motion, but I allowed it to proceed because you had been told by the clerk that it was in order. However, I have explained to you several times now about the process for receiving this motion, and I'm asking you a specific question. Will you be willing to stick to a time limit on completing your comments on this or not?

[Translation]

Mrs. Francine Lalonde: Madam Chair, under what rule are you asking me that?

[English]

The Chair: Madame Lalonde, the reality is that I've already ruled on this motion, so we're going to continue to proceed to clause-by-clause.

We're at amendment G-18.

Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair. I have moved the motion, so my comments would be—

The Chair: Do you have a point of order, Mr. Dubé?

[Translation]

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): On a point of order.

[English]

The Chair: Go ahead then, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: Madam Chair, the Member for Mercier asked you a very specific question. Under what rule are you continuing clause by clause consideration and preventing her from debating her motion, as she requested and as you agreed to this morning?

[English]

The Chair: Mr. Dubé, the reality is that I've already ruled this morning. As I told Madame Lalonde, there are other avenues available if she doesn't agree with my ruling. We entertained her point of order. We've had several comments on her point of order. We've asked her specifically to.... That would mean a reversal of my ruling, which I have not agreed to. I am not prepared to reverse my ruling at this time. As the chair, I believe I have the right to make rulings, and I have the right to keep them in place. At the present time, that ruling is staying in place.

• 1550

I'm proceeding with Mr. Lastewka.

Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I would like to raise a point of privilege, Madam Chair. I am prepared to accept that you have certain rights under the Standing Orders. However, they specify that the Chairperson's role is, first and foremost, to ensure that the rights of parliamentarians are respected.

I would submit that as a parliamentarian, it is my right, and Mrs. Lalonde's right, under the Standing Orders, including Standing Order 116, to continue to debate a motion if that motion has been entertained by the Chair. So, at the very least, when you make a ruling, you can say that it was made under such and such a Standing Order, or on debate, and that's it. If not, Madam Chair, your response is unacceptable. You have given no reason. You are simply saying that it's because you have made your ruling.

Any Chairperson, even the Speaker of the House, must refer to the Standing Orders. I would invite you, Madam Chair, to review the Standing Orders with respect to the question put to you by the Member from Mercier and to cite the reasons why you believe she is out of order.

[English]

The Chair: Mr. Dubé, we have precedents at this committee. It has happened several times that there has been a motion moved to vote. We have done it, and there has never been any objection to it in the past. There was a motion moved by Mr. Keyes, we voted on it, we ended debate, and we've returned to clause-by-clause. I apologize if you don't like the precedent that was set by this committee, but it's happened in the past at this committee, so now we're going to proceed to clause-by-clause.

Mr. Lastewka, on G-18.

Mr. Walt Lastewka: Thank you, Madam Chair. G-18 is a—

The Chair: Mr. Dubé.

[Translation]

Mr. Antoine Dubé: On a point of order, Madam Chair.

The Chair: Mr. Dubé.

Mr. Antoine Dubé: During the lunchtime break, Madam Chair, because this morning...

[English]

The Chair: Is this a point of order, Mr. Dubé? Is it on a new subject?

[Translation]

Mr. Antoine Dubé: Yes, this is a point of order.

[English]

The Chair: If it's on my past ruling, I'm not going to entertain your point of order. My ruling stands.

[Translation]

Mr. Antoine Dubé: Then I wish to raise a point of privilege, Madam Chair.

[English]

The Chair: Mr. Dubé, what is your question of privilege?

[Translation]

Mr. Antoine Dubé: It is a point of privilege. I am informing quite candidly that because we felt our rights had been violated, after you asked me to leave, we checked with staff in our leader's office.

[English]

Some hon. members: Oh, oh.

The Chair: Mr. Dubé, stop. Stop right there. I never asked anyone to exit the room. You chose to leave on your own accord this morning.

Mr. Keyes put forward a motion that would have allowed you to debate every amendment that came up, and it would have allowed everyone to have ample debate. We've had ample debate on several amendments. You can see how far we've progressed since you left this morning. We've had discussion with the officials here. The whole point of clause-by-clause with the officials at the table is to have ample debate so that no one leaves this table without their questions answered. We wouldn't proceed if people didn't feel their questions were answered.

Unfortunately, Mr. Dubé, unless you have a point of order, I'm moving to G-18 and Mr. Lastewka.

[Translation]

Mr. Antoine Dubé: On a point of order, Madam Chair.

[English]

The Chair: Point of order.

Mr. Stan Keyes: Is this the same point of order?

[Translation]

Mr. Antoine Dubé: Madam Chair, you may...

[English]

The Chair: Is this a new point of order, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: Yes, Madam Chair, or a point of privilege, if you prefer. My words are not being accurately quoted. I recall very well, Madam Chair, that...

[English]

The Chair: You just raised your point of privilege.

[Translation]

Mr. Antoine Dubé: Let me finish. You did indeed say “One more word and I'll have you removed.” And I said one more word. It's true that I left of my own volition, but you did say that.

An hon. member: That's not true.

Some hon. members: No, no, no.

[English]

The Chair: No, that's not what I said at all, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I'm sorry. Suspend the meeting...

[English]

The Chair: Mr. Dubé—

[Translation]

Mr. Antoine Dubé: ...and check the transcript.

[English]

The Chair: Mr. Dubé—

An hon. member: You decided to leave on your own.

[Translation]

Mr. Antoine Dubé: That was clearly stated this morning.

[English]

The Chair: You chose to exit the room. I did not say at all that you had to exit the room. Those words did not come from my lips. If you misinterpreted them, I'm sorry, but you do not have to leave the room. You're welcome to stay at the table and you're welcome to participate in the debate. It's your privilege as a member of Parliament. It's your right to be here. I never said that. I never would say that, so don't put words in my mouth, Mr. Dubé.

I'm moving on, unless you have something new, to Mr. Lastewka and G-18.

[Translation]

Mr. Antoine Dubé: I will give you the benefit of the doubt, because we are dealing with interpretation. You made your comments in English and I listened to the interpretation. So, I'll give you the benefit of the doubt.

[English]

The Chair: No, you're not going to give me the benefit of the doubt. That's enough, Mr. Dubé!

We're moving on to G-18 and Mr. Lastewka.

Mr. Walt Lastewka: Thank you, Madam Chair.

The Chair: You don't have the right to sit there and insult the chair.

Mr. Walt Lastewka: I just want to include that G-18 is a result of the—

[Translation]

Mrs. Francine Lalonde: I wish to raise a point of privilege.

[English]

The Chair: The member is raising a question of personal privilege.

Madame Lalonde.

[Translation]

Mrs. Francine Lalonde: Madam Chair, as is my right, I would like to move that your ruling be rescinded. I would ask that there be a recorded vote so that we can reconsider the motion.

• 1555

[English]

Mr. Stan Keyes: Why should she do that?

Madam Chair, I have a point of order.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Is Madame Lalonde proposing that she has a proposition for us to say, if I'm going to address this committee on my past motion, which will take no longer than 40 minutes, would the committee consider rescinding the motion? That could be entertained. But to just demand that a previous decision by the chair be turned over without explanation is totally unacceptable.

Give us a reason that you would want that to happen.

Mrs. Sue Barnes: I have a point of information.

The Chair: Ms. Barnes.

Mrs. Sue Barnes: Madam Chair, the rules provide appeal processes if you're unhappy with something, and I suggest you learn the rules and go and use the rules to say whatever you have to say. But this committee is structured right now and the chair has ruled. I respect the right of the chair's ruling, and she has made it very clear she's not rescinding her ruling right now.

I would invite you to stay and participate in clause-by-clause, as I've already said.

The Chair: Madame Lalonde.

[Translation]

Mrs. Francine Lalonde: Madam Chair, I have every right to demand that vote. Vote against it if you are not in favour, but I demand a recorded vote. I made that request this morning but my right to do so was violated.

An hon. member: It's out of order, Ms. Lalonde.

Mrs. Francine Lalonde: No, no; that request is not out of order.

Ms. Marlene Jennings: You are asking us to reverse the Chair's ruling. No.

Mrs. Francine Lalonde: That request is perfectly consistent with parliamentary procedure, Ms. Jennings.

Ms. Marlene Jennings: No.

Mrs. Francine Lalonde: Come on!

Ms. Marlene Jennings: No.

[English]

The Chair: Madame Lalonde, you can't move a motion on a point of order. I had a motion on the floor from Mr. Lastewka.

Mr. Lastewka, continue amendment G-18.

Mr. Walt Lastewka: Amendment G-18 takes into account the recommendations from the bar association to allow for complaints to proceed to court if required and to make sure it's done on a timely basis.

The Chair: We have a point of order.

[Translation]

Mr. Antoine Dubé: I would just like to remind you, as I pointed out last Thursday, that a point of order or point of privilege must be dealt with before anything else. So, you cannot recognize Mr. Lastewka before you have dealt with Mrs. Lalonde's point of order.

[English]

Mr. Stan Keyes: Is this a new point of privilege?

The Chair: You can't bring a motion up on a point of privilege or a point of order.

She made a motion on a point of privilege or a point of order. I forget which one it was. I'm going back to Mr. Lastewka and amendment G-18.

We have a motion on the floor. Mr. Lastewka has been interrupted several times now, Mr. Dubé. We have a motion on the floor.

Mr. Lastewka.

Mr. Walt Lastewka: Can I ask for the vote?

[Translation]

Mr. Antoine Dubé: Madam Chair, on a point of privilege.

[English]

The Chair: You have a point of privilege, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: I would like to read the relevant section of the Standing Orders, which states the following:

48(1) Whenever any matter of privilege rises, it shall be taken into consideration immediately.

[English]

The Chair: I considered it immediately and I solved it immediately. You can't raise a motion on a point of privilege or a point of order. We have a motion on the floor.

Mr. Lastewka.

Mr. Walt Lastewka: I do believe you can't repeat a point of privilege and points of order. You must have new ones.

The Chair: Mr. Dubé, are you raising a new point of order?

[Translation]

Mrs. Francine Lalonde: Would you like to deal with the one that is outstanding?

Mr. Antoine Dubé: Perhaps I should ask you, Madam Chair, to read Standing Order 16(2)? It states the following:

16(2) When a Member is speaking, no Member shall pass between that Member and the Chair, nor interrupt him or her, except to raise a point of order.

And as I mentioned earlier, Standing Order 48(1) provides that a matter of privilege must be dealt with immediately before any other matter.

[English]

The Chair: Yes, and I did solve it.

The reality is on her point of privilege she made a motion. You can't make a motion on a point of privilege or a point of order. That's the reality.

• 1600

Now we move back to Mr. Lastewka, amendment G-18. Thank you.

You can't go around the rules, Mr. Dubé. If you want to quote rules to me, you cannot.... We've moved on; I've made a ruling. If you have something new, I will listen to it. Is it something new or is it the same point?

Is it something new, Madame Lalonde?

[Translation]

Mrs. Francine Lalonde: Madam Chair,...

[English]

The Chair: Is it something new, yes or no?

[Translation]

Mrs. Francine Lalonde: I am raising a point of order. This morning, while I was speaking, Mr. Keyes raised a point of order and asked that the question be called, something that parliamentary procedure does not allow. He violated my right to speak. Madam Chair, that is why I am moving that this ruling be rescinded; nothing could be more legitimate that to move such a motion in the context of a committee meeting.

[English]

The Chair: Madame Lalonde, the reality is that I made a decision this morning; I made a ruling. I have also made a ruling now on your point of order, your point of privilege. We must continue with Mr. Lastewka.

Mr. Lastewka.

[Translation]

Mr. Antoine Dubé: Madam Chair...

[English]

The Chair: Mr. Dubé, if you don't have anything new, I'm not going to entertain your point of order. Is it something new?

[Translation]

Mr. Antoine Dubé: Yes, it is new. I am asking under what Standing Order you made that ruling.

[English]

The Chair: Mr. Dubé, I've already made a decision dealing with Mr. Lastewka.

Mr. Lastewka.

Mr. Walt Lastewka: I've called for the question.

(Amendment agreed to—[See Minutes of Proceedings])

[Translation]

Mr. Antoine Dubé: I wish to raise a point of privilege, Madam Chair.

[English]

The Chair: You have a point of privilege, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: It isn't possible to make the democratic process work if you don't follow the rules. You did not respond to the point of privilege I raised; you simply said that you had made ruling and that the motion was out of order. I would ask you to suspend the Committee's work until you have had an opportunity to consult one of the many experts on parliamentary procedure here in Parliament, so that you can come back to us and say: "I made that ruling under such and such a Standing Order." Imagine if...

[English]

The Chair: Mr. Dubé, on a new point of privilege. I've already ruled on your previous point of privilege. We are moving on.

Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I move amendment G-19.

[Translation]

Mr. Antoine Dubé: I am going to have to keep on talking, because it is clear that you are not following these Standing Orders. I must continue to insist, as long as you refuse to answer...

[English]

The Chair: Mr. Dubé—

[Translation]

Mr. Antoine Dubé: ...my question...

[English]

The Chair: Mr. Dubé—

[Translation]

Mr. Antoine Dubé: ...with respect to the Standing Orders.

[English]

The Chair: —I was just informed—

[Translation]

Mr. Antoine Dubé: Your attitude is completely unacceptable, Madam Chair.

[English]

The Chair: Mr. Dubé, you're out of order. You are out of order.

I was just advised by the two clerks to continue with Mr. Lastewka, because I had already ruled on your point of privilege and your points of order. I am now continuing. That's where we're at.

[Translation]

Mr. Antoine Dubé: You are not following the Standing Orders.

[English]

The Chair: Mr. Jones.

Mr. Jim Jones (Markham, PC): I think this morning, you allowed the tabling of a vote—

[Translation]

Mr. Antoine Dubé: [Editor's note: Inaudible]

[English]

The Chair: Mr. Dubé, will you please be quiet. We have someone else speaking on the floor.

[Translation]

Mr. Antoine Dubé: When someone raises a point of order, he cites a specific Standing Order...

[English]

The Chair: Mr. Dubé, you are out of order. What don't you understand about that?

Mr. Jones.

Mr. Jim Jones: I'd just like to remind you, Madam Chair, that this morning you allowed the tabling and the vote of Mr. Keyes' motion while Madame Lalonde was speaking on her motion. So you've allowed that. Was that a proper ruling?

The Chair: Mr. Jones, we have a precedent at this committee where we have done that several times when debate has gone on at length. So I followed the precedence of this committee. The reality is that's the decision I made this morning. You're bringing up the same point of order. We're going to move on. We've already dealt with my ruling from this morning.

Mr. Lastewka.

Mr. Walt Lastewka: I move amendment G-19, Madam Chair. I would like to point out that this question came up a number of times—

The Chair: Mr. Lastewka, I have another question of privilege.

Is it a new question of privilege, Madame Lalonde?

[Translation]

Mrs. Francine Lalonde: I would like to come back to the answer you just gave, Madam Chair. You said that precedents created in this very Committee support the approach you're taking. But you cannot cite precedents when you violated the Standing Orders in order to establish new ones.

[English]

The Chair: Madame Lalonde—

[Translation]

Mrs. Francine Lalonde: This morning, as I was debating a motion, a point of order was raised that turned into a call for the question, something that parliamentary procedure does not allow.

[English]

The Chair: Madame Lalonde—

[Translation]

Mrs. Francine Lalonde: That's why I am asking that I be allowed to continue to debate my motion.

[English]

The Chair: Madame Lalonde, we made a decision this morning, we voted on it, and we moved on.

[Translation]

Mrs. Francine Lalonde: No.

• 1605

Mr. Antoine Dubé: No, but what Standing Order are you relying on to declare this motion out of order?

[English]

The Chair: I have been advised that I've made a ruling and I'm allowed to have that ruling stand and continue with the agenda.

Madame Lalonde, if there is unanimous consent from this committee to allow you to speak for five minutes, I would be happy to listen to you speak for five minutes, to continue, if you have something that you thought you didn't get to say this morning. However, I am not reversing my ruling. I am prepared to proceed as we are, as we have been going.

I ask if there's unanimous consent to allow her to speak for five minutes. Would you agree with that?

No. Okay, then we're moving on.

Mr. Lastewka.

Mr. Walt Lastewka: Thank you. I move amendment G-19.

The Chair: We have another point of order. Is it a new point of order, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: Since you have confirmed that your ruling stands, I would respectfully request that you tell us which Standing Order you are relying on to make that ruling.

[English]

The Chair: Mr. Dubé, we are moving on. I've already made a ruling.

Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, amendment G-19 supports the point that the commissioner—

The Chair: Mr. Dubé, you have a new—

Mr. Walt Lastewka: —will inform the organization as well as the complainant of his decision not to prepare a post-investigation report. It was for fairness for both the individual and the organization. That's why the amendment is being put forward.

The Chair: Just a second, Mr. Lastewka.

Is it a new point of order, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: Yes, because under Standing Order 116, I have the right to...

[English]

The Chair: This is the same point of order you raised before. Mr. Lastewka shall continue.

Mr. Walt Lastewka: So I would ask that you support this amendment.

The Chair: You have a point of order, Madame Jennings.

Ms. Marlene Jennings: I want to speak on amendment G-19.

The Chair: Okay. Madame Jennings, you can speak to amendment G-19.

[Translation]

Ms. Marlene Jennings: This amendment tabled by the government responds to a comment I made to Minister Manley when he came to discuss the legislation with us. I drew his attention to the fact that sub-section 13(2) provides that the Commissioner is not required to prepare a report and that in such cases, the Commissioner only informs the complainant and gives his reasons. That sub-section did not however provide for the organization whose conduct was the subject of the complaint to be informed. I gave examples of cases where it would be important...

[English]

The Chair: Can I have order, please? Order. I have someone speaking.

[Translation]

Ms. Marlene Jennings: ...for the organization to be informed, not only of the filing of the complaint, but also of the disposition of that complaint. So that is the rationale for this amendment, which I support.

[English]

The Chair: Are there any other comments on amendment G-19?

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Mr. Lastewka, I'm sorry.

Mr. Walt Lastewka: Madam Chair, I move amendment G-20.

The Chair: I apologize. I have to move clause 13.

Mr. Walt Lastewka: I'm sorry.

(Clause 13 as amended agreed to)

(On Clause 14—Application)

The Chair: Mr. Lastewka, amendment G-20.

Mr. Walt Lastewka: I move amendment G-20.

The Chair: You have a point of order, Mr. Dubé. Is it a new point of order?

• 1610

[Translation]

Mr. Antoine Dubé: It's a point of privilege. I want to know under what Standing Order you continue to authorize debate, as though nothing had happened, when Standing Order 120...

[English]

The Chair: Mr. Dubé, I told you that I was advised by the procedural clerks sitting next to me that I could continue with the orders of the day that are before us. That's what I'm doing. I've already ruled on your point of order. We are continuing on.

I'm not debating it with you, Mr. Dubé. I've made a ruling. I'm sorry that you don't like it. We're moving on.

Mr. Lastewka, G-20 please.

Mr. Walt Lastewka: Madam Chair, committee, if you remember, subclause 5(3) places a reasonable test on the purpose of collection. This amendment will allow the individual to complain to the commissioner or go to court if they believe the purpose for collection, use, and disclosure is inappropriate. So this is going back to an earlier item that I think both Mr. Jones and Mr. Jaffer had some discussion on, that they wanted to make sure there was a means of carrying on with the process to a higher level.

The Chair: Madame Jennings.

[Translation]

Ms. Marlene Jennings: Thank you, Madam Chair.

I think this is important, because all the non profit organizations involved in consumer protection told us that they would like to have access to a specialized tribunal that could hear complaints. However, if that was not deemed reasonable or possible in the current context, the Commissioner should be able to file a complaint or take the initiative of going before the Federal Court. He should not be forced to wait until a complaint has been filed to have that option. So, I think it's important that members support this amendment.

[English]

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: Next is amendment G-21. This came out of a number of people who were before us as witnesses, including the privacy commissioner. Concern was expressed that the wording was unclear regarding his ability to take something to court. So in order to clarify it, this amendment is being put forward to make sure it's very clear what he can and can't do.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 14 as amended agreed to)

(On clause 15—Commissioner may apply or appear)

The Chair: Mr. Lastewka, clause 15, amendment G-22.

Mr. Walt Lastewka: Madam Chair, I move amendment G-22.

Basically, this clarifies what the commissioner can do in respect of a complaint. There were some people who weren't clear on it. The commissioner himself wanted to have this type of amendment to make it perfectly clear what he can do.

The Chair: Madame Jennings.

[Translation]

Ms. Marlene Jennings: I just wanted to say that all the comments I made with respect to the previous amendment also apply to the one now before the Committee.

[English]

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 15 as amended agreed to)

(On clause 16—Remedies)

The Chair: Mr. Lastewka, clause 16, amendment G-23.

Mr. Walt Lastewka: I move amendment G-23. It's basically to delete lines 19 and 20 on page 12.

• 1615

A number of the witnesses had brought forward the fact that we should not be putting a limited amount on any punitive damages. It's for that reason that we bring that forward. A number of the civil liberties groups had brought this forward, with very good reasoning. That's why the amendment is brought forward.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 16 as amended agreed to)

The Chair: New clause 17.1 comes after clause 17 as a new clause. So we will deal with clause 17 and then deal with clause 17.1.

[Translation]

Mr. Antoine Dubé: On a point of order.

[English]

The Chair: We're voting here on clause 17, Mr. Dubé. You have to wait for your point of order. We're in the middle of a vote.

[Translation]

Mr. Antoine Dubé: I would like...

[English]

The Chair: Wait, wait, wait. We are voting on clause 17. We are in the middle of a vote, Mr. Dubé. I will deal with your point of order as soon as we're done the vote.

(Clause 17 agreed to)

[Translation]

Mr. Antoine Dubé: On a point of order, Madam Chair.

[English]

The Chair: Mr. Dubé, you have a point of order?

[Translation]

Mr. Antoine Dubé: Yes. I would ask that for the rest of these proceedings, all votes be recorded votes.

[English]

The Chair: You want a roll call for all the votes?

[Translation]

Mr. Antoine Dubé: Yes.

[English]

The Chair: Okay. We are on clause 17.1. We have a Liberal amendment. Madame Jennings.

Ms. Marlene Jennings: Madam Chair, I wish to withdraw my amendment, given that the government has tabled amendments G-26 and G-27, one of which covers this and actually does it better than my amendment. So I'm withdrawing my amendment.

The Chair: Thank you very much, Ms. Jennings. That is withdrawn.

I will just let the Reform Party know that your amendments REF-8 and REF-9 are the same as PC-9 and PC-10. We will do them in the order in which we received them. If PC-9 and PC-10 are defeated, those votes apply, or if they're accepted those votes apply.

That doesn't make a lot of sense—if they're accepted, the votes apply. That wouldn't make a lot of sense, if the votes would apply if it's accepted. If they're not exactly the same wording, how can that be?

A voice: They're the same.

The Chair: They're identical? We have identical motions. Okay, I apologize.

Mr. Ted White (North Vancouver, Ref.): It's not quite the same as....

The Chair: Okay. We'll deal with PC-9 and Reform-8 first and then we'll deal with PC-10 and Reform-9.

PC-9, Mr. Jones.

(On clause 18—To ensure compliance)

Mr. Jim Jones: Madame Chair, I move PC-9.

My explanation is that this would allow the privacy commissioner to conduct an audit only when there are reasonable grounds to believe that the law has been violated. As this clause in Bill C-54 is presently written, the privacy commissioner would also be able to audit companies based on disputes regarding recommended business practices, which are listed under schedule 1 of the bill.

The rationale is that audits are intrusive and place a heavy administration burden on the business operations of Canadian companies. As such, the audit power should only be used to cover alleged violations of mandatory obligations set out in the bill, not to micro-manage whether a company complies with recommended business practice, such as what type of password and encryption are being used by a company.

The privacy commissioner already has the tools in Bill C-54 to ensure there is compliance of schedule 1. For example, clause 11 allows an individual to file a complaint if he or she feels that an organization is contravening the legislation or not following a recommended business practice. Furthermore, clause 12 gives the privacy commissioner the power to investigate all complaints, including complaints that an organization is not following a recommended business practice. This amendment therefore brings a better balance of the rights of the privacy commissioner to do his job and the rights of organizations to not be unduly harassed.

The Chair: Madame d'Auray, do you have any comments on Mr. Jones' amendment?

• 1620

Ms. Michelle d'Auray (Executive Director, Electronic Commerce Task Force, Industry Canada): In some ways it is similar to Reform-4, which was on page 44, in limiting the ability of the commissioner to handle a complaint on all aspects of division 1 and schedule 1. We maintain and we believe that the ability to undertake audits as well as investigate should apply to all aspects of the schedule.

The commissioner, in terms of his audit powers, has to do so on reasonable notice, on reasonable time, and on reasonable grounds where he or she believes that the organization is contravening a provision. If an organization has very often been found or been the subject of complaints or very often been found that practices are changing, that there is no stability in the recommended practices or in best practices of information management, then the commissioner can undertake an audit of the company's or the organization's practices.

In the course of an audit, as it is in terms of other types of audits, organizations can clearly indicate where they don't necessarily match a recommendation because there is a notation, there is an ability to identify where a best practice may be better than what is recommended in the schedule. So it does allow the organization to express clearly how it deals with the recommendations or the best practices that are identified in the schedule.

We believe that for consistency's sake, both for the investigation and the audit capacity, the commissioner should be able to look at the entire division 1 and schedule 1. And again, the issue of limiting to the courts only those specific obligations as identified in clause 14 would then be cause for a remedy before the courts.

So for the consistency of the approach for the complaint as well as for the audit provisions, we feel that it provides the commissioner, as well as the organization, with the right balance.

The Chair: Mr. Crête, do you have comments on PC-9?

[Translation]

Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témiscouata—Les Basques, BQ): Madam Chair, I think this is a very important clause. It is the sinews of war, so to speak. It's important to take whatever time is needed to review it properly. I certainly don't think that's possible if we're limited to five minutes of debate. As a parliamentarian, I feel that if we're not given all the time we need to debate the issues, as we see them, then that is a violation of my rights that I find totally unacceptable.

On the amendment itself, it's...

[English]

The Chair: You have a point of order, Mr. Keyes?

Mr. Stan Keyes: Just that he's out of order.

[Translation]

Mr. Paul Crête: Madam Chair, I haven't finished speaking.

[English]

The Chair: Mr. Crête, you should be aware that we don't have a limit of five minutes of debate on each motion. We have a motion that was passed—

[Translation]

Mr. Paul Crête: There is no time limit on debate...

[English]

The Chair: There is a motion that was passed that each member would have five minutes to speak, which means that every member could speak on every single motion that's before us. We've allowed points of clarification and we've allowed there to be ample debate on each clause all through this morning and this afternoon. So I don't understand your problem.

[Translation]

Mr. Paul Crête: Could I ask another question of clarification? Does that mean each member is allowed no more than five minutes on each amendment?

[English]

The Chair: The motion that was voted on this morning and approved was that in order to facilitate a more productive use of this committee's most valuable time, debate on any motions before this committee or any discussions during the clause-by-clause examination of the bill be no more than five minutes per speaker per clause—not five minutes in total. I ruled that if there were amendments, it would be on the amendments as well, in addition to the clause. So I don't understand your problem, Mr. Crête.

[Translation]

Mr. Paul Crête: I don't see why I should have to limit myself to five minutes. That is a violation of the Standing Orders of the House. There is a Standing Order that clearly states that I have the right to speak as long...

[English]

The Chair: In fact, Mr. Crête, we have passed the motion here and that was accepted this morning.

[Translation]

Mr. Paul Crête: You can pass whatever motions you like, but if my rights are being violated, I have the right to say so and clearly express my views to the Committee. It is not up to the Chair to decide how and when members can take part in this debate.

[English]

The Chair: I didn't make the motion, first of all, Mr. Crête. The motion was made by a member of this committee. It was voted on by this committee. I didn't make any ruling in regard to the motion whatsoever. There was a motion before the committee and it was voted on.

I believe there is precedent that says a committee can decide its own rules and operations, and that's what this committee did earlier today. We've been debating this bill since December. We've had ample time to speak on many of these issues. We put the amendments out there so you could be aware, Mr. Crête—I know you're not a regular member of this committee. We put the amendments from the government side out there over three weeks ago to allow for ample discussion. We've tried to ensure that there could be as much discussion as possible. There's no intention whatsoever to rush this bill through.

• 1625

We have the departmental officials here; they're here to discuss every issue. We've allowed points of clarification. We've allowed debate on all the clauses. I've asked every time if there are questions. There haven't been any questions for the last twenty minutes. I'm not limiting anyone's ability to speak when it comes to amendments and clauses that are before us, with all due respect, Mr. Crête.

[Translation]

Mr. Paul Crête: You just said, Madam Chair, that I am not a standing member of the committee. It's as though you were saying I don't have the same rights as other members of the committee, because I am replacing another member.

[English]

The Chair: No, I said “regular”. I didn't say, “permanent”. I said I was trying to inform you of the process of what this committee has been doing, Mr. Crête. I was trying to let you know what's happened in the past at this committee and why this committee adopted an all-day clause-by-clause session, which is something this committee doesn't normally do. And we don't normally have the officials sitting at the table throughout clause-by-clause. We usually have them make a presentation, leave the table, and then move to clause-by-clause. We've done this differently to ensure that there be adequate discussion and participation in the clause-by-clause process. I thought that was the better way to do it. That's the decision I made. The committee supported me in that decision. There was a motion that was adopted this morning.

You have your time to speak to PC-9; that's where we're at. If you'd like to speak to the amendment before us, please proceed, Mr. Crête.

[Translation]

Mr. Paul Crête: I am speaking to the amendment. However, I want to be sure that I am right in thinking that you said my speaking time is not limited. Did you just confirm that I am not subject to a time limit?

[English]

The Chair: No, in fact there is a time limit based on the motion. It would be no more than five minutes per speaker, per question.

[Translation]

Mr. Paul Crête: How can you impose a time limit when the Standing Orders do not allow it?

[English]

The Chair: Order. Mr. Crête, I have a point of order by Mr. Jones. Will you please be quiet.

[Translation]

Mr. Paul Crête: Madam Chair...

[English]

The Chair: Mr. Jones.

[Translation]

Mr. Paul Crête: ...you are not my mother.

[English]

Mr. Jim Jones: I think to be fair to the chair—

[Translation]

Mr. Paul Crête: I haven't finished, Madam Chair.

[English]

The Chair: There's a point of order. Madame Lalonde and Mr. Dubé have interrupted everyone all afternoon. Now I have a point of order from Mr. Jones. Please be quiet.

[Translation]

Mr. Paul Crête: That's not the way it works, Madam Chair. I asked for the floor. I have the right to take the floor. I will take as much time as I like commenting on the legislation and I will not ask your permission to do so.

[English]

The Chair: You're out of order, Mr. Crête.

An hon. member: You're out of order, Paul.

The Chair: Mr. Jones.

Mr. Jim Jones: To be fair to the chair, I think we did impose a five-minute rule, but it hasn't been rigidly enforced at all, and on some motions people have spoken longer than five minutes if they had something constructive to say and it was a very important point. Nobody is going to restrict anybody on any of these motions or amendments if it's constructive and it's adding to the dialogue.

An hon. member: Absolutely.

The Chair: Thank you, Mr. Jones. That's exactly what happened.

Mr. Paul Crête, you're on debate. Are you going to continue debate on PC-9?

[Translation]

Mr. Paul Crête: On a point of order, Madam Chair.

[English]

The Chair: Do you want to speak to the point of order?

[Translation]

Mr. Paul Crête: Yes. I understood from what my colleague just said that there should be no time limit because of the importance of this clause. That is what I understood him to say. If members have relevant comments to make about this clause, then they should have an opportunity to do so. In suggesting such an approach, my colleague is following the Standing Orders. I consider his opinion in this regard to be acceptable and I believe it should be the rule by which the Committee operates from now on, if it wants to abide by the Standing Orders of the House.

[English]

The Chair: Mr. Keyes, do you want to speak to that?

Mr. Stan Keyes: On this point, no one here is saying that. If you have something valuable to add to the amendment that's put forward, this committee has been very lenient and will let it go on. Mr. Jones had an amendment, PC—I can't remember the number, 2 or 3, and he spoke in dialogue with the officials for 18 minutes because it was all relevant and we were all engaged. At one point or another, the chair will have to determine the relevance of the discussion, and if she feels we're going over old ground, or if she feels we're becoming repetitive and it's over the five-minute limit, but you've had whatever minutes she deems you need to make your point, then it's up to the chair to cut in and say, I feel there's been enough discussion; I'm calling the question.

So it's ultimately up to the chair to decide that. If you're going to need more than five minutes to make your point and it's all relevant, it's all fresh, it's all adding to the thing, nobody here on this side is going to stop you from speaking. But as soon as you pull a stunt or get duplicating, or try to sit in on this committee to filibuster, Mr Crête, I'm pretty sure the chair will smell that and she'll call the question, and if it's over five minutes it will be done.

• 1630

The Chair: A point of order, Mr. Crête.

[Translation]

Mr. Paul Crête: I certainly do not intend to be repetitive or not to present new arguments. I do believe this is an important bill. It's a bill to which there is very solid opposition, and I think we have the right to speak and to try and convince you that our arguments are founded. But in terms of that process and determining the relevance of making those arguments, the fact is that decision is not necessarily up to the chair to make. Every member has the right to speak and to take as much time as he deems necessary to speak to the issue.

[English]

The Chair: Order, please. Order.

I've heard everyone's points of order.

We're now going to return to PC-9. We have respected this process, Mr. Crête, and I will continue to respect the process. If you're speaking to the amendment or the clause before us and it contributes to the debate, we will allow people to express what they have to express based on what's in front of us. That being said, Mr. Crête, do you have any comments on this amendment PC-9?

[Translation]

Mr. Paul Crête: Yes, Madam Chair, I do have comments. We're talking about one of the pivotal clauses of this bill. The amendment being proposed and the title of the clause itself prompt us to wonder whether or not compliance with the Quebec Privacy Act will be guaranteed through the Commissioner and through the other provisions of this clause.

It is important to give some background regarding the Bloc Québécois' position on this clause. For a number of years, Quebec has had legislation in place that applies to the private sector and deals with situations such as this. Were clause 18 to pass, it would lead to significant duplication. Indeed, the entire bill will cause duplication. However, when reviewing each of the bill's clauses, we have a responsibility—particularly with respect to pivotal clauses that deal with this kind of issue—to find some way of avoiding duplication.

The amendment currently before us does not directly resolve that problem. It's important for committee members to understand that position, which is that there are implications that will result in major costs...

[English]

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: The amendment we have on the table is PC-9. It talks to the direction of what the commissioner can do and what is to be included, whether it's only division 1 or is it part of the recommendation set out in schedule 1. I think this is the debate that's on the floor. If the member has some discussion on that item, I would say it's in order, but if it goes beyond that order, it's out of order.

The Chair: I think Mr. Lastewka's point of order was that you're not speaking directly to the amendment. We're just dealing with the amendment right now and not the clause. Do you have any comments on the amendment, specifically?

[Translation]

Mr. Paul Crête: I certainly do have comments. But we can't talk about the amendment without talking about the clause it is amending or the legislation it is a part of.

[English]

The Chair: We're going to be talking about the clause.

Just so you understand, the way this process works—

[Translation]

Mr. Paul Crête: I have been a member of Parliament for six years, Madam Chair. I think I understand the way the process works.

[English]

The Chair: —is we deal with the amendment first. We're dealing with the substance of the amendment and then we deal with the clause itself. We're trying to deal with the specifics of the amendment right now, and if you could try to relate your comments specifically to the amendment, we have to take a vote on the amendment.

Do you have any comments specific to the amendment? That was Mr. Lastewka's point of order, and I would ask that you try to address your comments to the amendment, if you could. If not, talk however you want. You have five minutes.

• 1635

[Translation]

Mr. Paul Crête: I'd like to give you a more detailed explanation of what I said earlier. This bill, and specifically this clause and this amendment, will duplicate an existing Quebec statute.

Section 85 of the Quebec statute states the following:

85. The Commission and any person it assigns to carry out an investigation under the present Act enjoy, for the purposes of the investigation, the powers and immunity provided for in the Commissions of Inquiry Act (Chapter C-37), except the power to order a term of imprisonment.

We have an amendment before us that deals with powers. Both the amendment and the clause it flows from will create duplication because in a single area of jurisdiction, there will be two ways of doing things. People will be facing a two-tier system; there will be two types of legal defence. And under the circumstances, they may have to pay two sets of lawyers, because both are operating in a single area of jurisdiction.

I want to draw the committee's attention to the fact that this amendment duplicates a section of the Quebec statute.

This example is intended to demonstrate that this amendment is not relevant. In no way does it clarify matters with respect to that duplication. It makes the situation no clearer.

[English]

The Chair: Thanks. Are you finished?

Yes, Madame Jennings.

[Translation]

Mr. Paul Crête: Yes, for the time being, Madam Chair.

[English]

The Chair: Thank you, Mr. Crête.

[Translation]

Ms. Jennings, please.

Ms. Marlene Jennings: I cannot support this amendment to clause 18, because I think it's extremely important that the Commissioner have the power to carry out audits, not only for an alleged contravention of the legislation, but also with respect to any of the recommendations it contains.

A number of provincial commissioners as well as the federal Commissioner told us that they had held consultations with the private sector. Most of the associations representing organizations that are subject to the law are not opposed to it. They are definitely not against the powers given to commissioners.

As to the matter of duplication raised by Mr. Crête, I would refer you to paragraph 27(1)d) or 27(2)d), which states that if the legislation of the province is substantially similar, then the provincial law will take precedence. The Minister of Industry has already said that because Quebec has similar legislation, it will be exempt and the Quebec statute will take precedence in that province. Consequently, I don't see this posing any problem of duplication or overlap.

Indeed, if that is such a concern, as a Quebecker, I might want to ask my provincial government to set aside the provincial Income Tax Act so that I am not subject to two tax systems, as I have been ever since Quebec passed its own Income Tax Act.

[English]

The Chair: Thank you.

Mr. Crête, you had something else to add?

[Translation]

Mr. Paul Crête: I'm glad Ms. Jennings made those comments. She simply confirms my theory: that clause 18 which we are currently considering refers back to clause 27. So, in reviewing the amendment, it is important to take that into account.

Ms. Jennings was saying that this will allow us to cover both obligations and recommendations. If we include the recommendations, we will be adding to the overlap by including elements not covered in the bill. This will just duplicate provisions of the Quebec statute.

• 1640

I'm very pleased that Ms. Jennings, in making that clarification, has actually brought home the point that this bill is not consistent and only contributes to increased duplication. That is why I don't feel the amendment is relevant.

Actually, if, as Ms. Jennings suggested, we refer to clause 27, it is clear that it does not exclude duplication with the provinces.

The Conseil interprofessionnel du Québec, which has a membership of 260,000, referred to this very problem in a letter addressed to Minister Manley. I won't read the entire letter, but it does state the following:

This bill raises both questions and concerns among our members.

This is directly related to the amendment under discussion, with respect to jurisdiction.

The Quebec Bar has already raised a number of questions with respect to the constitutional division of powers in this area...

Again, this is directly related to the amendment before us.

...and commented on both the scope and content of the bill.

Mention is also made in this letter of the Charter of Rights and Freedoms. In fact, this issue is referred to throughout the letter.

[English]

The Chair: Maybe I could have the officials just clarify for you what the intention of the amendment is so that we can try to stick to the point of the amendment. You're still dealing with the main part of the clause. I would like to deal with the amendment here. Maybe officials can give us again their opinion on the amendment. I'd like to just deal with the amendment, PC-9, if I could.

[Translation]

Mr. Paul Crête: Let's hear what they have to say.

[English]

The Chair: Maybe we could hear what they have to say about the amendment Mr. Jones has put forward on PC-9.

Ms. Michelle d'Auray: The amendment submitted would limit the capacity of the commissioner to audit on the recommendation set out in schedule 1, whereas now the bill in subclause 18(1) indicates that the commissioner can undertake an audit on division 1 and schedule 1. So the amendment basically would limit the audit power to division 1.

The Chair: Are there any other comments on the amendment—just on the amendment? Mr. Dubé, you have a comment on the amendment?

[Translation]

Mr. Antoine Dubé: I would like a recorded vote.

[English]

The Chair: Do you want a recorded vote on the amendment? I apologize. You're right, you did say that.

(Amendment negatived: nays 9; yeas 2—[See Minutes of Proceedings])

The Chair: The amendment is defeated, which means Reform-8 is also defeated.

Moving on to PC-10....

I'm sorry, Madame Lalonde, on a point of order.

[Translation]

Mrs. Francine Lalonde: Madam Chair, in light of the discussion we had earlier and others since, I wish to inform you that I would like to take 45 minutes to defend my motion, and that I am willing to limit my speaking time. I would also ask that there be a recorded vote.

My goal is to defend this issue. I repeat: this is not the issue of one party but rather of the entire province of Quebec. It reflects our ongoing desire to ensure that this bill can really be enforced.

[English]

The Chair: I will accept that. I appreciate that. We would like to have the committee proceed, and we'd like to also give you the opportunity to say what you believe you need to be on the record.

• 1645

Mr. Stan Keyes: I have a suggestion, Madam Chair.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Madam Chair, given the 45 minutes Madame Lalonde will take, it will take us to 5.30 p.m., which was our original scheduled stop time anyway. We've all had a pretty long day, given the situation. You might accept the idea of dismissing the officials, if Madame Lalonde doesn't need the officials here—she probably doesn't—and at the conclusion of Madame's remarks and the recorded vote, the committee would adjourn for the evening.

The Chair: I have Mr. Lastewka and Ms. Barnes.

Mr. Walt Lastewka: Madam Chair, I'm not clear now on the schedule of doing the balance of clause-by-clause. My understanding was earlier that with the time we spent on the motion this morning, we would spend some extra time....

The Chair: Mrs. Barnes.

Mrs. Sue Barnes: Madam Chair, I would agree with that. I thought it was decided this morning, because we lost time on the vote, that we would continue on so that we can get through this. I think the House is sitting this evening, and I'm prepared to just keep working on this bill as necessary. I suggest we do not adjourn at 5.30 p.m., but that we continue on and keep going for a few more hours anyway.

The Chair: Madame Jennings.

[Translation]

Ms. Marlene Jennings: Mrs. Lalonde, I would be very pleased to hear your comments, particularly since you have now agreed to cut back the amount of time required to present your arguments on the bill. I therefore have no objection.

However, I would like to point out that the position you are defending is that of one party, which may be supported by some Quebeckers...

The Chair: Ms. Jennings.

Ms. Marlene Jennings: ...but not by all Quebeckers.

[English]

The Chair: Madame Jennings, please. I was speaking specifically to the issue of the officials.

This will be my proposal, if it's acceptable to everyone. We'll allow Madame Lalonde to speak for 45 minutes. We will take a recorded vote. Then we will continue on for 45 minutes after Madame Lalonde has spoken. Is everyone in agreement with that?

Mr. Stan Keyes: Only 45 minutes after?

The Chair: I anticipate a vote at the end of proceedings today.

Mr. Stan Keyes: That's right.

The Chair: So why don't we continue on until the vote takes place, unless we make another decision after that?

Mr. Stan Keyes: Okay.

The Chair: Let's proceed. I'd like to hear what Madame Lalonde has to say. I think it's very important that she have the opportunity.

I was just going to suggest that the officials not have to sit still for 45 minutes. If you need to take a break, come back and forth, if that's okay with Madame Lalonde.

I understand there's a vote at 6.30 p.m., so we'll do the 45 minutes and then we'll continue on until the vote. Okay?

I'd like to hear what Madame Lalonde has to say. I want to thank you, Madame Lalonde, for agreeing to this.

Madame Lalonde.

[Translation]

Mrs. Francine Lalonde: Thank you.

Yes, it has been a hard day, but it is also a day that has, to our mind, confirmed the need—something I will still try to convince you of—to suspend clause-by-clause consideration of the bill. Why this motion? Is this motion intended to waste your time? No, not at all.

I know that the parliamentary secretary is an important man inside the party. This motion is genuine; it is intended to convince you to ask the minister to suspend the process to pass this legislation and thereby gain some time.

• 1650

It's important to understand that there is a real constitutional issue here. There is a real political issue.

If we don't do what we can to ensure that this legislation is harmonized with the Quebec statue, it is not parliamentarians who will suffer, but businesses, which will be facing major problems and major costs. And the people of Quebec will also suffer, as they will not enjoy the same protection—adequate protection. As I said this morning, often Quebeckers won't know who to turn to.

I am counting on my colleagues opposite to convince the members of their party. They think they're already in the know, but it doesn't matter. Nothing discourages me, you know, because this is not my proposal; this is not just my position.

I would like to respond to Ms. Jennings, because like me, she heard a number of Quebec organizations repeat to the Committee that this legislation is the subject of a broad consensus in Quebec. This is not sovereignist legislation. I repeat that it was passed by Daniel Johnson's government, through Minister Lawrence Cannon, and was amended with unanimous consent by the PQ government.

An hon. member: Good man, Lawrence Cannon.

Mrs. Francine Lalonde: The two ministers who are responsible for amending the legislation, two PQ ministers, are also good men.

There are some fundamental issues on which we should be able to agree without being partisan. If Quebec was able to agree on legislation like this, why, starting from that statute, could we not have developed legislation in Canada that built on existing expertise within not only large corporations in Quebec, which have made a major effort in this area, but the Access to Information Commission? We could have used that as a starting point. Politically, you would have made gains and so would we. We could have avoided this terrible misunderstanding, this unnecessary dispute. And when I say "dispute", I don't mean just a minor disagreement.

I listened to the comments made by my colleague, Paul Crête, early. This morning, we received a copy of the letter sent to Minister Manley by the Conseil interprofessionnel du Québec, which represents some 43 professional corporations and has more than 260,000 members. They have concerns with the provisions of Bill C-54. This is what they said:

The Quebec Bar has already raised questions with respect to the constitutional division of powers in this area and commented on both the scope and content of the bill. On this last point, the Bar emphasizes the potential ineffectiveness of the regime and remedies being proposed.

I would remind you that chartered accountants all across Canada said the same thing. They continue their arguments as follows:

It pointed out that the standards and obligations set out in the legislation are in many respects lower than the ones that have been enforced in Quebec for a number of years via various laws passed by the National Assembly. With that in mind, the CIQ would like to address a number of considerations with respect to Bill C-54 and make a specific request that flows from those considerations.

They then mention the many regimes in Quebec that apply to professionals, including the Quebec Charter of Rights and Freedoms, the Quebec Civil Code and the Professional Code.

• 1655

With respect to Bill C-54, they add the following:

Based on the scope of the legislation, as defined, Bill C-54 would cover Quebec professionals as well as a number of industries, businesses or people currently subject to Quebec legislation in this area. We believe that a layering of regimes having the same purpose and subject can only lead to confusion and uncertainty as regards citizens' rights—particularly if those regimes do not share the same prescriptive philosophy and procedural approach with respect to implementation.

In recent years, the CIQ has held discussions with the government of Quebec...

That is what a number of business groups told us.

...in order to resolve problems resulting from a layering of regimes, that is a general regime and one specifically aimed at Quebec professionals and professional institutions. The arrival of yet another general regime, such as the one proposed by Bill C-54, would unnecessarily complicate the lives of citizens who hold these rights, as well as the individuals and organizations who must respect them.

Let us try and put ourselves in the position of these professionals who have already had to get used to the Quebec statute and its requirements. I don't know whether you have copies of it or not. They have had to get to used to this new legislation, and try to understand its impact on their relationship with their clients. Now they will be facing another piece of legislation, the one currently proposed, which is entirely different, which does not convey a clear message, and whose message, even when it is clear, sometimes conflicts with the one in the Quebec statute.

You have not clarified the jurisdictional issue with your amendment to clause 4. On the contrary, you have made it even more general. The scope of the bill is such that businesses will wonder which law applies.

If I have a complaint from a citizen or a professional assisting a citizen, under what legislation will I file a complaint?

So, they are concerned; this is what they say:

We know that the provisions of Bill C-54 allow the federal government to decide by order of council to exempt from the system an activity or organization already covered by a substantially similar provincial statute.

They refer here to paragraph 27(2)d), which you were mentioning this morning.

This mechanism does not reassure us in terms of the management of these layered regimes. In fact, it demonstrates a piecemeal approach which in no way eliminates confusion and uncertainty, since one activity in Quebec could be subject to C-54's regime, while another would be subject to the Quebec legislation. Furthermore, this in no way solves the problem of the inadequacy of the bills standards and obligations and the ineffectiveness of the regime it establishes.

This is their conclusion:

We believe that Bill C-54 and the regime it proposes are highly inappropriate in the Quebec context and we ask that the bill be amended to explicitly exempt persons or organizations subject to the comprehensive Quebec statute in this area, particularly professionals and professional institutions.

Madam Chair, here's another example of a cry from the heart, like the many others we have heard. If the members of this committee and the Minister took advantage of the parliamentary recess to start up the negotiations again, so that we could achieve the desired harmonization, don't you think everybody would be better off?

Of course, there is no doubt that we will fight it, but beyond denouncing this new example of federal interference in our areas of jurisdiction, which is true, we are especially interested in ensuring that Quebec residents and businesses are not subject to two different regimes, which would make the whole system less efficient.

• 1700

It just isn't true that if we enforce the two statutes, electronic commerce will expand rapidly. That just isn't true. Nor is it true that businesses will be able to devote all their energies towards the goal they should be pursuing, which is ensuring better protection of personal information.

Businesses will have to grapple with the problem of revising their training programs. Also, some of them will probably opt for the least demanding regime, the one introduced by the federal statute, since in most cases, it gives them greater latitude.

My speaking time is going by quickly. Madam Chair, many witnesses, particularly people involved in consumer issues, but also others familiar with legislation application, have told us that the main body of the legislation does not contain clear enough requirements, thereby making it confusing; they referred in particular to a Schedule abounding in use of the word "should", meaning that even though there is no obligation, the Privacy Commissioner may investigate, which is certainly contradictory. A number of witnesses raised that point.

Why didn't the government follow up on the suggestion made by many that the bill set out a series of clear and simple requirements? It is possible to do that. Why didn't the government do that? The fact that the bill provides that the Schedule cannot be amended except by order in council, an order in council that must reflect revisions agreed to by the Canadian Standards Association, makes this requirement seem that much more extreme.

Some amendments only correct part—I would even say a very small part—of the issues repeatedly brought to our attention by a great many witnesses. It is not enough that Parliament can make a decision about the core of the legislation; it is important that the legislation be accessible and clear.

I want to particularly emphasize the need for clarity. For a piece of legislation to be properly applied, clarity is an absolute necessity, particularly for the business community. If the wording is not clear, businesses will not know what to do and will be less inclined to abide by it, or will only do so in their own way. As for large corporations, clarity is an absolute must. Yet, as anyone can see, clarity is definitely lacking.

• 1705

In fact, as things now stand, in the case of businesses that will be subject to the law immediately after it is passed—I am thinking of insurance companies in particular—the needed clarity just is not there and neither are the answers.

One very cogent argument was made by the Conseil du patronat du Québec: that data collection cannot be carried out according to two different methods. Either there is a requirement for clear, explicit consent given for a specific reason, and no other, or there isn't; it can't be both.

It is unthinkable that one regime operating in a given province would have that requirement for clear and explicit consent, but that the information would not have to satisfy that requirement when it is sent somewhere else. It is the same piece of information. Businesses are not going to start all over and collect that same data differently just because they are sending it somewhere else. Here we are up against a very concrete issue that is very difficult to explain; you would really have to find a more vivid way of expressing the idea. That information that is collected based on certain characteristics cannot be collected based on other characteristics, since it is the same piece of information that is to be protected.

Is it possible that information collected by a business according to the requirements of the Quebec statute—which are that consent be explicit and given for no other reason—once it had crossed the border, would no longer be subject to that rule, such that a citizen would no longer be protected? We simply cannot accept that. That just makes no sense.

Similarly, there is only a right of redress under a law that is enforced. How will a citizen know if the information he provided will be protected under the rules? Which of the two laws will govern information protection?

These are not just idle questions, because people will have to apply this new law. That is what we were repeatedly told.

In fact, what strikes me is that a number of professional groups, including the Conseil du patronat, made the point before the Committee that the federal bill is weaker that the Quebec statute as regards requirements for consent. That is what the Conseil du patronat said. It could have been jubilant and commended the government, knowing that the federal bill was less demanding. But it didn't do that. Because at certain times in their lives, business people are also ordinary citizens, fathers, and individuals with rights that they want to be respected. So, they told the Committee that the federal bill was not demanding enough.

Some might think that is a pretty strange turn of events and that one might have expected the business community to congratulate the federal government for being less demanding. But that is not what happened. And I am really proud. It seems to me this is additional evidence that when a parliament stands up and says that citizens' rights with respect to privacy protection are as follows—namely that consent must be explicit and that the information must be provided under very clear conditions—not a lot of "shoulds" or "maybes", but rather under clear conditions such as those set out in the Quebec statute—the business community follows its lead.

• 1710

When that happens, citizens feel supported; they know that if a large or small business, or anyone operating a business, does not abide by the legislation, they won't be alone, because the government will be there supporting them.

I saw a couple of the amendments you made to the bill with respect to remedies. The Privacy Commissioner—and I hope I've got this right—not only under a number of different clauses but in relation to a case that he himself has not initiated, will be able to go before the Federal Court. The fact remains that this would involve a long process. Also, a number of witnesses, particularly people who know a good deal about protecting citizens, told us that in this area, the best solution is a specialized tribunal.

It's not because the Federal Court is federal, but because it is a court. There is no doubt the Federal Court is not the first avenue citizens would initially think of pursuing, but that in fact is not my point.

A court is not the most appropriate authority when it comes to deciding issues based on complicated jurisprudence covering a number of areas, because applying a privacy act is quite a complicated task.

It's a shame that Paul-André Comeau, whom you invited to appear twice, Madam Chair, was unable to come. I would have liked to hear his views, since he, along with other professionals, helped to develop these rules. Together they put a system in place which has had its problems and its failures. But that is normal when you are innovating and breaking new ground.

Once that period of innovation is over, why not take advantage of that experience, particularly when doing so means greater protection for citizens and an opportunity for them to exercise their right of redress more expeditiously? That redress procedure would be free, which is certainly not guaranteed in this bill, even with the amendments that have been made, because nowhere does it state that the Privacy Commissioner will go before the court every time somebody doesn't find a solution to his problem. Also, I should point out that going before the Federal Court will, in some cases, be like using a baseball bat to kill a fly.

And that is not all. When it comes to looking at a file or changing information in that file, clause 4.9 does not offer a great deal of clarity. Going before a court for that purpose could be quite a daunting or discouraging task, hence the need for a specialized tribunal.

Ms. Valerie Steeves, a very interesting person who is a professor at the Human Rights Research and Education Center, made the following point when she appeared before the Committee:

While I was preparing opening comments for my appearance this morning, one particular observation stood out in my mind of all those I heard throughout the hearings. It was in Toronto, at the end of our local public meeting, that a man stood up and said that he was concerned that the organizations with the most to gain from an invasion of people's privacy would be the ones developing the legislative program.

It is clear that Bill C-54 is an initiative of the electronic commerce industry.

I saw the “blues”—I am no longer quoting Ms. Steeves—and I would remind members that Ms. Finestone also made that point.

I think it is important to note that the bill uses the word “consumers”, “businesses” and “industries” 78 times, but only 10 times do we find the word “citizens” mentioned.

• 1715

What the Ottawa conference demonstrated is that the European community expects the business community to do its share by introducing voluntary codes, but that the government is there to support citizens when they need help.

I would also like to quote some of the comments made by Mr. Claude Masse. I'm sorry; I'm not used to calling lawyers “Maître”; that shows a lack of respect and I often make that slip. Maître Claude Masse is a renowned lawyer; he's a former president of the Bar who specializes in consumer law. He and Pierrôt Péladeau played a pivotal role in shaping what were to become standards for protecting personal information in Quebec.

I would remind you that we also heard, on more than one occasion, from English-speaking experts, from both British Columbia and Ottawa, who said that if Quebec had not taken the initiative it did, Canada would not be where it now is.

Maître Claude Masse said this:

First of all, I can tell you that having closely examined Bill C- 54, these regulations, or these, I suppose one could say, voluntary standards that are made to look like they have a legislative grounding by being set out in an Schedule, are not rigourous enough to protect consumers. They are full of loopholes for businesses. They are based in large part on a completely obsolete approach when it comes to consumer protection, and remedies are practically non- existent.

We noted these shortcomings right at the outset and again, at the very outset, we pointed out just how clear the Quebec statute was.

I would just like to reread the wording of the Quebec statute:

14. Consent [...] must be express, free and informed, and be given for specific purposes.

That's clear.

Consent that is not given pursuant to the first paragraph is null and void.

If you compare that wording to the various clauses dealing with consent that are found in the Schedule, and to the various provisions of clause 7, found in the body of the legislation, you will surely agree that the language is neither as simple nor as clear.

What does that mean? I would appeal to those of you who are lawyers. What it means is that it will take a lot longer to determine the meaning of the requirements set out in the legislation. That's what it means. And it also means that in some provinces where a system is put in place to administer the legislation, that system will not be a clear system. That is what it means.

It is certainly a lot more difficult to administer a regime that is not based on clear requirements than it is to administer one that is stringent. Businesses have repeated that over and over. I even remember hearing someone explicitly say that the issue is not the level of the requirements, but rather their clarity, because it is important to us that they be predictable. That is the only way, in large organizations, to ensure that the legislation is properly applied. It has to be extremely clear so that people who will be required to apply it can be told: in this case, you do this, and in another case, you do something else. The client is right and this is what you have to tell him, and so on.

Look at the bill and ask yourselves what kind of rules businesses will be able to put in place. Even if they wanted to seek guidance from the Commissioner, he would not be in a position to determine how the law should apply if the meaning of a specific provision were to be challenged.

• 1720

So, the problem of clarity is a major one.

As for remedies, I must say that the comments made by chartered accountants in Canada were of great concern to me. I believe it was Mr. Yu who made the remarks I am about to repeat:

The bill provides a remedy to the Privacy Commissioner. In our view, this is a weak provision. Because the legislation only offers a conflict resolution mechanism, the Commissioner, although he can carry out investigations, has no real power.

We also believe that the maximum penalty of $20,000 in damages that a court could order someone to pay under the legislation is not high enough. Particularly in the electronic commerce industry, people who don't play by the rules will just see this as part of the cost of doing business.

That is very disturbing. These were the comments made by someone who came before the Committee representing chartered accountants; that was what they said in their brief.

I have just been told that you are proposing that the $20,000 limit be removed. You obviously realized that this had been raised as an issue, and I think it's very important. What that shows is in addition to citizen protection, there is another issue that has not yet been addressed. Almost no one has talked about electronic commerce, and that's too bad. Almost no one has mentioned it. Lists of names are central to this kind of commerce. This was clear in a number of comments that were made. In Quebec, when a business sells a list, it must give clients whose name appears on that list the choice of having their name removed.

Madam Chair, as the time available to me is drawing to a close, I would like to conclude by quoting the words of Mr. Frémont; or rather, Maître Frémont. As you can see, I have a bit of a problem with titles.

Maître Frémont, who is a renowned expert, and is not one to jump on bandwagons, sees this bill an attack on the Constitution. The Canadian Bar could not confirm that it wasn't. The Conseil du patronat expressed concern about possible challenges.

I am inclined to think, dear colleagues, that if you take a couple of moments to consider what that means, you will realize that even if you pass the amendments quickly and get the bill through, in the final analysis, there is no guarantee that you will actually have saved more time than if we had tried to reach some sort of agreement.

I will repeat what I said this morning. This motion asks that the Committee suspend clause by clause consideration of the bill in order to go and negotiate, because the further along you get in passing this bill, the harder it will be for you to go back to it and the more you undermine the chances of harmonization.

• 1725

I repeat: if we were only interested in scoring points for sovereignty, I would not be making these comments. But we are parliamentarians who are here to defend the interests of our fellow citizens, and they have repeatedly told us of the problems that this legislation will cause them.

I would therefore ask that there be a recorded vote on the motion, our motion. Right, Mr. Dubé?

Mr. Antoine Dubé: Yes.

Mrs. Francine Lalonde: He is taking notes. Yes, it will be there. As I see it, it is also a way of ensuring that you remember we raised the issue. You will remember that we raised this issue, but not in a spirit of confrontation, because the real confrontation is in the legislation itself.

The principles are basically the same, but the devil is in the details. In the labour relations sector, I have seen agreements in principle result in long strikes, because the distance between the principles and their application is always an important factor.

The process of passing this legislation on electronic commerce could have been quite different. Indeed, there is still one avenue open to us; that would be to pass the legislation on electronic commerce first and then try to reach an agreement with the provinces, so that they would move quickly to pass legislation to protect personal information.

If there were a policy process in place of each of the provinces aimed at ensuring protection of privacy, that would do a lot more to advance this cause. It's like with human rights and social rights: the value or strength of a law derives from the degree to which people adhere to it. I am not claiming that everybody in Quebec is familiar with the legislation or uses it or abides by it. But it has been the subject of a lot of debate. There was a political consensus and a lot of money and publicity have been devoted to it. But that takes time.

Things could have worked differently. Indeed, it still is not too late. That is the reason why we are appealing to you. Why did we decide to do this now? Well, it's true that we could have done it at another time, but it is that much more meaningful coming, as it does, at the end of the Committee's hearings.

We all know that very few witnesses were heard on the issue of electronic commerce. A number of witnesses who could have come to discuss this with us told us that they hadn't looked at it. We didn't even get an answer with respect to secure electronic signatures and other similar issues.

Madam Chair, I requested 45 minutes of speaking time. I want to thank all of those who made it possible for us to reach that agreement. I don't think we need to worry about principles; they are intact and will remain so, even when the Liberals again find themselves in the Opposition. I hope that Quebec will have solved its problems by then. Once again, we will have helped you to retrieve the situation.

I therefore ask, Madam Chair, that there be a recorded vote on my motion.

• 1730

[English]

The Chair: Thank you very much, Madame Lalonde, for respecting the time limit and for your comments. We may not all agree; however, we do definitely appreciate the right that you have the opportunity to put those comments on the record, and we hope that as a committee we can all move forward. I believe the clerk's going to take a roll call now on the vote.

Would you like the motion read?

Mr. Jim Jones: Yes.

[Translation]

Mrs. Francine Lalonde: Could someone read the motion?

[English]

The Chair: Do you want the clerk to read the motion?

The Clerk of the Committee: Moved by Francine Lalonde that:

Whereas witnesses were recently heard by the Standing Committee on Industry, on Bill C-54, concerning the major problems in implementing this legislation; and took into account the big application difficulties of this bill,

Whereas the Quebec government has repeated its demand that Bill C-54 be withdrawn,

It is proposed:

That the Committee suspend Clause by Clause consideration of Bill C-54 and ask the Industry Minister to undertake negotiations with all the provinces, to forestall any constitutional challenge that might impair the attainment of its objectives.

(Motion negatived: nays 7; yeas 4)

The Chair: The motion is defeated. Two at a time, Madame Lalonde.

We will now resume clause-by-clause, with everyone's permission.

Mr. Stan Keyes: Madam Chair?

The Chair: Mr. Keyes.

Mr. Stan Keyes: I have a question. I ask that as per prior agreement of all parties we go into clause-by-clause only until the bell for the vote at 6.15 p.m.

The Chair: Yes, that was the agreement.

Mr. Stan Keyes: Just until 6.15 p.m.

The Chair: Yes.

[Translation]

An hon. member: After your...

[English]

Mr. Stan Keyes: I'm sorry?

The Chair: I didn't hear that, Mr. Dubé. I'm sorry?

[Translation]

Mr. Antoine Dubé: I want to be sure I understand. I believe I heard Mr. Keyes say that the meeting would last until the vote and that we would meet again tomorrow afternoon

[English]

Mr. Stan Keyes: That's correct.

The Chair: Actually, tomorrow afternoon we have witnesses scheduled already. We'll have to schedule another meeting to resume clause-by-clause. I'll have to work it out with the clerk. I think it would have to be Thursday morning or afternoon if we don't finish before the bells. We'll have to see what we have on our agenda. We may have to rearrange some things. But let's deal with what we can until the bells, if everyone's in agreement. If we're in agreement, we'll go until the bells for the vote.

Some hon. members: Agreed.

The Chair: Okay. We were in the middle of clause 18. We have an amendment. It's PC-10.

Mr. Jones.

Mr. Jim Jones: I have a point of order.

The Chair: You have a point of order, Mr. Jones.

Mr. Jim Jones: Yes. You said amendments PC-10 and R-9 were to be lumped together. I'd like to point out that amendment L-2 is the same motion and should be lumped with the others too.

The Chair: You are correct. So you have the floor, Mr. Jones. Your motion was in first, and whatever we do with your motion determines what happens with the other two.

Mr. Jim Jones: Thank you. I'd like to move amendment PC-10. The explanation is that this amendment is the third of four that would require the privacy commissioner to obtain prior judicial authorization and approval before the commissioner exercises his/her search and seizure powers.

Bill C-54 already provides the privacy commissioner with broad investigation and audit powers to summon and enforce the appearance of persons under oath, converse with any person, compel the production of documents, and receive and accept any evidence in the same manner and to the same extent as a superior court. There is a need for additional safeguards in Bill C-54 when it comes to the privacy commissioner or his/her delegates actually entering the premises of a private organization and seizing records.

The person authorizing search and seizure powers should not be the same person executing those powers. The authorization should be granted by a neutral third party, as in the case for criminal investigation. It is therefore not unreasonable, especially since clause 28 of Bill C-54 includes criminal sanctions, to require the privacy commissioner to obtain the permission of a court to use the search and seizure powers under clauses 12 and 18.

• 1735

The Chair: Mr. White, do you wish to speak on the motion?

Mr. Ted White: Yes, thank you, Madam Chair.

Amendment REF-9 is substantially the same. I think there's one word different. So we can consider it the same for purposes of the discussion, as Madam Chair said earlier.

I agree with the points just made. At the pleasure of the commissioner or a delegated person, entry can be made into, presumably, a business and items copied or taken away. Potentially, that could put a business out of business, especially as some items don't have to be returned for up to 10 days. It seems to me we should, at the very least, err on the side of caution and make sure that innocence is presumed until the person is found guilty. Keeping that in mind, the police must obtain a search warrant to enter premises when they suspect something is happening that warrants investigation. They have to convince a judge that they have reason to do that and there's justification for such drastic action.

So surely we must question the wisdom of allowing an appointed commissioner, who we assume and hope would be ethical, to just authorize someone to enter a business and seize records or copy things without some checks and balances put in place.

The amendment would cause the commissioner to reflect upon any action that was being considered, and to have to justify it in front of a court or a judge would be a very appropriate way to make sure that was an appropriate action for the commissioner to be taking.

This is a reasonable expectation and it's an insurance policy against the abuse of power. I appeal to the sense of fairness and justice amongst the members here to think about whether you would want your business, your sister's business, or your father's business to be entered without due process. It seems entirely reasonable to have a judge take a look at it first and say yes, that's okay. In the interests of justice, I certainly hope all the members would vote for this amendment.

The Chair: Do the officials have any response to that?

Madame d'Auray.

Ms. Michelle d'Auray: Thank you, Madam Chair.

I think the comments I will be making are similar to the comments I made in relation to amendments PC-7 and REF-6, which were on pages 46 and 47, and amendments PC-8 and REF-7 on pages 48 and 49.

The issue here is not a question of innocence or guilt, nor of a criminal investigation. This is a civil or administrative body. The commissioner does not issue binding orders or fines. There are provisions for those issues to be dealt with at the courts, and we believe it is reasonable for the commissioner, in dealing with recalcitrant organizations and in order to deal with the need of speed in some instances, to have these powers.

The other item that was raised in relation to previous motions with regard to the investigation is the issue of cost. Every time the commissioner would have to get an order or debate the issue before the court to obtain a warrant or a court order for an issue that is non-criminal, it would just add an additional burden to the commissioner to try to fulfil his or her obligation.

So, in our view, the balance that is achieved by the fact that this is not a criminal issue, this is a civil and administrative matter, and that the commissioner does not issue binding orders or fines is sufficient.

In terms of the clause, under paragraph 18(1)(d), it is also the test of reasonableness. At any reasonable time, the commissioner has to do so and do an audit on reasonable grounds, give reasonable notice, so there are some limitations and prescriptions as to how he or she can exercise the powers.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Madam Chair, I thought I'd just add to this debate why I'll vote against this motion. As I recall, it was the privacy commissioner who came before us and said, do you know how many times we've gone into these institutions in order to gain access to documents that are necessary? I think he said last year it was 2,000 times. That's 2,000 times.

So that means he's going to have to get a warrant, as you suggest, from a court to do this job. You can't imagine the backlog and the workload for the privacy commissioner's office to get those warrants, but on top of that, with 2,000 more warrant applications coming in and with the examination of those warrants, the workload of the courts to fulfil those requests would increase.

• 1740

Madam Chair, I am satisfied that there are limitations put on the privacy commissioner when and before he goes into a place of business, as in the example being stated by the form. Let's remember that there's a review process. In five years' time, whether it's this privacy commissioner or a new privacy commissioner for some reason, we'll be able to look at this thing and ask whether he or she misused the right they have to do the job we've outlined in this bill. If we see that he or she has, the government will be the first to tighten the screws on that privacy commissioner and to request that warrants be obtained. But with all the reasons that the privacy commissioner gave, and with the limitations that are put on that individual, I'd have to vote against this amendment.

The Chair: Mr. Lastewka, do you have a comment as well?

Mr. Walt Lastewka: I just wanted Madame d'Auray to give some of the examples we heard when we were looking at PC-7.

Ms. Michelle d'Auray: I believe I mentioned at the time that if you deal with food inspection agents or fish inspection agents, they have similar types of powers, as do the securities commissions. I would also mention that the Conseil du patronat du Québec, which testified before this committee, also referred to the ability to act swiftly. The Conseil made reference to a specific case of information that children had found in a dumpster. The commissioner had to act extremely quickly to find ways in which to seize the documentation and audit the practices fairly quickly. Otherwise, the commissioner would have been tied up in procedural issues for a long time, whereas the case required an immediate and rapid resolution.

The Chair: Ms. Barnes, and then Mr. Jones.

Mrs. Sue Barnes: I was just going to note that I'm quite surprised to hear the Reform Party talking about due process today, because Reform wants to shortcut due process whenever the discussion surrounds criminal law. As recently as earlier this week, I spoke in the House with the member, and I'm applauding the fact that he now sees some light. I just wish he would apply it to the right area of the law.

Thank you.

The Chair: Mr. Jones.

Mr. Jim Jones: I just want to say that when the privacy commissioner came in front of us, I think he said he had 2,000 cases. By 2,000 cases, he did not mean that's where he went in to obtain or see the records. I think a lot of this stuff can be obtained just by a friendly call or whatever, but there are going to be situations in which he may really be suspecting that there is something that is totally against privacy, that is illegally going on. In those cases, I think somebody has probably passed the information on to him. I think he should be getting a third opinion and should be getting the proper documentation, just like anybody else.

I don't think the privacy commissioner indicated that there were 2,000 cases in which he did search and seizure. There were just 2,000 cases in which there were privacy issues that required him to visit an organization. Out of that 2,000, it's probably in 1% to 2% or even less that he would probably have to use this instrument.

The Chair: Mr. White.

Mr. Ted White: Thank you.

The police have to deal with the rapid resolution of problems all the time. They have to get warrants issued quickly. There is no reason why the privacy commissioner couldn't be subjected to the same requirements.

If we're going to have a review process in five years, then, as I mentioned earlier, surely we should err on the side of caution. Let's put in place some restrictions to make sure impartial third parties are involved. If these restrictions are clogging up the courts, then we can take those out as part of the review. Surely that's a better way to go than to just have open opportunity for the commissioner to do whatever he wants in the meantime.

• 1745

I'm afraid the witness didn't convince me that it warrants disruption of a business operation just because it's a civil matter. The fact is, it still disrupts the business. In terms of personal information, many of the items that would be required are probably on computers. It requires extensive work to get the records off computers. It's quite different from a fish inspection or some situation in which you're finding specific files or paperwork, so I'm not convinced that voting down this clause is a wise thing. I think we should put it in there just to err on the side of caution.

The Chair: Madame d'Auray.

Ms. Michelle d'Auray: May I offer a suggestion? If you do put in a warrant power, which we would recommend against, it will in fact encourage all organizations to which the commissioner is speaking to request a warrant provision before the commissioner undertakes an investigation or an audit. In fact, it reverses the onus and encourages organizations to seek that, instead of dealing with the commissioner on an informal basis, as you have suggested.

The Chair: May I call the question?

Mr. Antoine Dubé: On division.

The Chair: You want it on division.

Mr. Jim Jones: We want a recorded vote.

The Chair: Okay, it's a recorded vote.

Mr. Jim Jones: I thought we asked for a recorded vote on everything.

The Chair: Mr. Dubé, did you still want a recorded vote on everything?

[Translation]

Mr. Antoine Dubé: All I said was, on division.

[English]

The Chair: Mr. Jones, are you asking for a specific recorded vote now?

Mr. Jim Jones: Yes.

The Chair: Mr. Jones is asking for a recorded vote.

(Amendment negatived: nays, 7; yeas 2—[See Minutes of Proceedings])

The Chair: Amendment PC-10 is defeated and Reform amendment R-9 and Liberal amendment L-2 will not go forward.

We're now on PC-11. Correct me if I'm wrong, but it's the same motion as R-10 and motion L-3.

Mr. Jones.

Mr. Jim Jones: I move this motion. If I can, I would just read the same comments in that I've made before. I would say that if—

The Chair: If you wish to read them in, that's your prerogative, Mr. Jones. We heard them before, but go right ahead.

Mr. Jim Jones: Do I have to read them in?

Some hon. members: No.

Mr. Jim Jones: Okay, they're the same comments.

The Chair: We'll take the same comments as read. Is there any further discussion?

Mr. Jim Jones: I'd like a recorded vote, please.

The Chair: Mr. Jones wants a recorded vote.

(Amendment negatived: nays 7; yeas 2—[See Minutes of Proceedings])

The Chair: Correct me if I'm wrong, but there were no amendments that carried. Do you want a recorded vote on clause 18 as well?

Mr. Jim Jones: Yes.

The Chair: It will be a recorded vote.

An hon. member: Is this for your children's scrapbook or something?

(Clause 18 agreed to: yeas 7, nays 3)

(Clause 19 agreed to on division)

(On clause 20—Confidentiality)

The Chair: We have amendment PC-12, from Mr. Jones.

Mr. Jim Jones: I move PC-12. My rationale is that this amendment would explicitly protect the confidentiality of individuals involved in the investigation of a complaint or an audit. There needs to be a better balance between the powers of the privacy commissioner and the privacy rights of the individual in any subsequent report or publicity. Although breaches of confidentiality are unlikely, it is perfectly reasonable to clearly spell out the protection of personal information in this section.

• 1750

The Chair: Is there any further discussion? Is there any comment from Mr. Lastewka?

Mr. Walt Lastewka: How does it change the existing legislation? The existing legislation says that.

The Chair: Perhaps the officials can speak on this.

Madame d'Auray.

Ms. Michelle d'Auray: Under subclause 20(1), the legislation already provides for the confidentiality of the commissioner or any person acting under the commissioner not to disclose any information that comes to their knowledge “as a result of the performance or exercise of any part of the Commissioner's duties”. We just assume this issue is already covered in the legislation. Actually, it's not assumed; it's specifically stated that the commissioner will not disclose any information.

In addition, you mention in the motion, “shall protect the privacy of”. The term “privacy” is a term that has never been introduced in the legislation, so it introduces it in an entirely different concept that is not covered, defined, or dealt with.

I think I'll end my comments there.

The Chair: Are there any further comments? Mr. Jones.

Mr. Jim Jones: How can you assume it's covered in the thing? It's either covered or it's not covered in the legislation.

Ms. Michelle d'Auray: I corrected myself. I did say it is explicitly stated that the commissioner shall not disclose any information.

Mr. Jim Jones: Which clause is that?

Ms. Michelle d'Auray: Subclause 20(1).

Mr. Walt Lastewka: It's the exact line you're trying to change.

The Chair: You're adding the words “shall protect the privacy of”, Mr. Jones. The words “shall not disclose any” are already there.

Mr. Jim Jones: I'll withdraw my motion for the time being.

(Amendment withdrawn—[See Minutes of Proceedings])

The Chair: Is there any further discussion on clause 20?

(Clause 20 agreed to on division)

The Chair: With regard to clauses 21 through 26, I have no amendments before us. Is there any discussion on any of those clauses, or is it possible to consider clauses 21 through 26 inclusive? Is there a problem, Mr. Lastewka? Are the amendments out of order in the package.

Mr. Walt Lastewka: Just one moment.

The Chair: Maybe I should go clause by clause if that's easier.

Mr. Walt Lastewka: No, I'm sorry, go right ahead.

The Chair: All right. What I was going to propose is that we do clauses 21 through 26. No? We have a problem here. There's a problem with 25, as I understand it.

Mr. Walt Lastewka: I thought we had an amendment to clause 25.

The Chair: We do have an amendment to 25. I think there's a problem with the way the amendment is written, Mr. Lastewka. I think we'll go through clause by clause so there's no confusion.

(Clauses 21 to 24 inclusive agreed to on division)

(On clause 25—Delegation to provincial authorities)

The Chair: Mr. Lastewka, You cannot delete an entire provision of the bill, so I think you might like to put on the record why you'd like to speak against clause 25, why you'll be voting against it.

Mr. Walt Lastewka: You're absolutely right, and that's why I was a little bit—

The Chair: I apologize. I should have mentioned earlier that the proposed amendment was out of order, but that there's another way to do what you wanted to do by that amendment.

Mr. Walt Lastewka: Proceed.

The Chair: Would you like to speak on why you'd like to defeat clause 25? Originally, your amendment was to delete clause 25. We cannot delete an entire clause; we can only defeat an entire clause. That's the procedure.

• 1755

Mr. Walt Lastewka: So that's the objective?

The Chair: I understand so. Maybe the officials can explain what the problem is with clause 25.

Madame d'Auray.

Ms. Michelle d'Auray: I believe the privacy commissioner raised this issue when he appeared before you the last time. The commissioner has expressed concern that clause 25, as currently stipulated, strikes at the autonomy of an independent officer of Parliament, with the Minister of Industry being able to delegate to any person with whom the commissioner may consult. He would prefer to have the clause stricken or defeated in order to be able to preserve his autonomy. He also has the capacity under his other powers to enter into any agreement with other privacy commissioners or other persons in order to ensure the implementation of the legislation.

The Chair: Are there any other questions or comments?

Mr. Dubé.

[Translation]

Mr. Antoine Dubé: The clause reads as follows:

25. The Minister of Industry may, with the approval of the Governor in Council, delegate to any person with whom the Commissioner may consult [...] any of the Commissioner's duties or powers under this Part.

Is that not a form of bypass? Does this allow the Cabinet to get around the Commissioner? Is there not that danger?

Ms. Michelle d'Auray: That's one of the reasons why the Commissioner has asked the Committee to delete this clause: he does not want his autonomy to be undermined.

Mr. Antoine Dubé: As far as I'm concerned, he's right.

[English]

The Chair: Madame Jennings.

[Translation]

Ms. Marlene Jennings: I agree with you, Mr. Dubé, and with the Commissioner, that clause 25 would have undermined the Commissioner's independence, since the Minister could have delegated any of his duties or powers. It does say: "Any of the Commissioner's duties or powers under this Part". So we are in fact talking about all of those powers.

I am not in favour of this clause either.

Mr. Antoine Dubé: I didn't really look at it that closely, but it seems to me that at the very least, we should add the words “on the recommendation of the Commissioner, the Governor in Council”. I think the words “on the recommendation of the Commissioner” should appear somewhere.

[English]

The Chair: Mrs. Barnes, and then Madame Jennings.

Mrs. Sue Barnes: Actually, I have a procedural question. Because I get to vote first in the roll call, I want to make sure I have it right.

Is the motion now to defeat the clause?

The Chair: In fact, we can either accept or defeat or reject a clause at this stage. Mr. Lastewka's original amendment was to delete the entire clause. We cannot delete an entire clause. We can delete sections of clauses or we can defeat a clause by rejecting it or voting against it.

Mrs. Sue Barnes: Yes, I understand that.

The Chair: That would accomplish the same objective. So when you're asked to vote, you're going to be asked to vote in favour or against. Mr. Lastewka is asking that members vote against clause 25.

Does that clarify it?

Mrs. Sue Barnes: Yes. With the double negatives here, I just needed to know so that I do the right thing.

The Chair: Okay, thank you.

Madame Jennings.

[Translation]

Ms. Marlene Jennings: Clause 12 already allows the Commissioner to delegate his powers of investigation to another person.

And if I am not mistaken, clause 23 gives the Commissioner the power to “consult with any person who, under provincial legislation that is substantially similar to this Part, has powers and duties similar to those of the Commissioner.”

So, even without clause 25, the Commissioner enjoys all the necessary independence to carry out his own investigations or audits, delegate his powers to another person who will then carry out the investigation or audit, and to consult provincial organizations having the same powers to ensure that the work is carried out cooperatively and harmoniously.

So, we don't really need clause 25, even though we cannot actually invalidate it.

• 1800

The Chair: Mr. Dubé.

Mr. Antoine Dubé: Surely there is an explanation for that. I see a possible one, and the answer may be found elsewhere in the bill. It is possible that a Minister or the Cabinet could be dissatisfied with the work performed by a Commissioner, when the latter has a mandate that it cannot... Can the Cabinet or the Minister terminate the mandate of a Commissioner prematurely? And if that were possible, would it be accomplished under this legislation or under a provision of a different statute?

The Chair: Ms. d'Auray.

Ms. Michelle d'Auray: The provision governing appointments is found in the federal Privacy Act, which applies to federal agencies. I believe that the Commissioner, as an officer of Parliament, is subject to certain limitations and that the government also is subject to some limitations in relation to him, although I cannot tell you exactly what they are. This is directly related to the powers of the Commissioner, as opposed to the individual.

[English]

The Chair: Okay? Now, on clause 25....

I'm sorry, Mr. White, I didn't see your hand.

Mr. Ted White: My question actually follows similar lines to that of Mr. Dubé.

Ms. d'Auray, what was the original purpose of this clause? Can you give us some history, some background, as to why it is there?

Ms. Michelle d'Auray: To be blunt, it was originally put in at the request of the drafters of the Department of Justice in the event that the governor in council wanted to delegate powers. When we looked at the powers that the commissioner already has with regard to the ability to enter into any other agreements, it was deemed as a double measure, an unnecessary one, and the commissioner raised the issue of the independence of his capacity as an officer of Parliament, which would be circumvented by this. On that basis, we agreed with his recommendation.

Mr. Ted White: Okay.

(Clause 25 negatived)

(Clause 26 agreed to on division)

(On clause 27—Regulations)

The Chair: On clause 27, we have a few amendments.

Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I would like to give my opinion on clause 27 as a whole, but I'm not sure whether procedurally, we first have to... Are there amendments to clause 27?

[English]

The Chair: I'm sorry, on what would you like to give your opinion? On clause 27, we have four amendments.

Mr. Antoine Dubé: Okay.

The Chair: If we could deal with the amendments first, that might be....

Actually, we have five amendments on clause 27. We have a problem. There was a new amendment this morning on clause 27. We have identified it as what?

The Clerk: It's amendment G-25.1.

The Chair: Does everyone have that amendment?

Okay, let's deal with amendment G-24 first.

Mr. Lastewka.

Mr. Walt Lastewka: I move amendment G-24, Madam Chairman.

The Chair: Is there any discussion on your amendment G-24?

Mr. Walt Lastewka: This amendment provides that regulation-making power to be made available to make sure we understand what is publicly available. Remember, we had many witnesses talk about making sure we understood what was publicly available information, and this amendment came out of that.

The Chair: Is there any other discussion on the amendment?

(Amendment agreed to on division—[See Minutes of Proceedings])

The Chair: Amendment G-25, Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I move amendment G-25.

• 1805

An hon. member: Why are you deleting all that?

Mr. Walt Lastewka: I'm glad you asked. This amendment deletes the power to designate archival institutions.

(Amendment agreed to on division—[See Minutes of Proceedings])

The Chair: Does everyone have G-25.1? We're talking about deleting—oh no, wait a second. PC-13 is the same as G-25.1.

Mr. Jim Jones: Oh. So mine is the official motion.

The Chair: There you go, Mr. Jones. You and I think alike.

Mr. Jim Jones: This amendment would remove the provision allowing cabinet, by order in council, to change schedule 1 of the act. Any changes to the core obligation of the act in schedule 1 should be subject to parliamentary oversight through legislative amendments, not mere cabinet orders.

The Chair: We all agree, I think. We'll see.

Mr. Jim Jones: I would like a recorded vote.

Some hon. members: Oh, oh.

Mr. Jim Jones: I want to see you guys voting over there.

A voice: It's unanimous.

[Translation]

Mr. Antoine Dubé: On division.

[English]

The Chair: Do you want a recorded vote?

Mr. Dubé, do you realize what the amendment does? The amendment now takes out—

[Translation]

Mr. Antoine Dubé: On division.

[English]

The Chair: But the amendment takes the ability to do schedule 1 by regulations and requires it to be an act of Parliament. Do you understand this?

[Translation]

Mr. Antoine Dubé: It deals with amendments to Schedule 1.

[English]

Mr. Stan Keyes: Madam Chair, you're talking about the Canadian Parliament. So we can we have a roll call and get this done?

[Translation]

Mr. Antoine Dubé: Madam Chair, earlier I reserved my opinion on clause 27. You may recall that we were against the idea of putting regulations in the Schedule. We wanted them to be part of the body of the legislation. Yet we have just been told that the Cabinet can...

[English]

The Chair: Yes. This amendment, which is Mr. Jones' amendment, and the government amendment are identical. It would, we've now agreed, take out paragraph 27(1)(b), which means that the governor in council cannot make regulations about schedule 1. Any changes to schedule 1 have to be done by an act of Parliament. That's a good thing, right?

Some hon. members: Oh, oh.

[Translation]

Mr. Antoine Dubé: Yes and no; let me explain. It is a good thing that the Minister can't amend the Schedule, which is something we would be opposed to, but these provisions still remain in the Schedule. We would have preferred that the standards be set out in the body of the legislation. So I do have a problem with the way this is being done, and that's way I am voting against the amendment, even though I understand the objective.

[English]

The Chair: Okay, we'll have a recorded vote. This is on amendment PC-13.

(Amendment agreed to: yeas 10; nays 1—[See Minutes of Proceedings])

The Chair: Shall clause 27 as amended carry? Shall we carry it on division?

[Translation]

Mr. Antoine Dubé: I would like to speak to clause 27 as a whole.

[English]

The Chair: Do you want to speak to clause 27 before we do the vote?

[Translation]

Mr. Antoine Dubé: Yes.

[English]

The Chair: Mr. Dubé.

• 1810

[Translation]

Mr. Antoine Dubé: This is a very important issue to us, and you will recall that we have often raised it. Some good will has been shown, but even with the amendment, these standards, which are presented in the form of recommendations, are still permanent and appear in the Schedule. It says the Minister will not be able to amend them before the five-year review, but to our mind, that doesn't make this any more acceptable. We don't think this is the right way to implement a standard developed voluntarily under the auspices of the CSA.

This is part of the legislation. The Bar argued that point in front of the Committee and a number of witnesses also said that this approach didn't make sense. That's why I am opposed to clause 27.

Don't worry, I have no intention of mounting a filibuster on clause 27. I simply wanted to reiterate that we are opposed to it.

[English]

The Chair: Thank you.

Just so you know, Mr. Lastewka, G-26 and G-27 are proposing new clauses. They have new numbers, so they're not part of the existing clause 27. I think you're actually going to withdraw G-26, but when we get to that, you can let me know.

Right now we're going to vote on clause 27.

(Clause 27 as amended agreed to on division)

The Chair: G-26, Mr. Lastewka.

Mr. Walt Lastewka: Madam Chair, I'd like to withdraw it.

The Chair: G-26 is withdrawn because we no longer have paragraph 27(2)(b), which G-26 relates to. So that would not be useful.

We're on to G-27, Mr. Lastewka or Madame Jennings. Madame Jennings, are you moving that?

Ms. Marlene Jennings: Yes, I'm moving G-27. This amendment concerns whistle-blowing protection. I don't know the term in French, but it's a term that's very well known in English, and it's to ensure that any employee or contractor who deals with an organization or is employed with an organization, who has reasonable grounds to believe their employer or the organization they contract with is violating protections under this legislation, can file a complaint and not be subjected to acts of reprisals by that employer or the organization they've contracted with.

You'll see that later on I submitted an amendment. I will be withdrawing that amendment because I'm more than satisfied with the government amendment here, which is why I moved it.

The Chair: Mr. Jones.

Mr. Jim Jones: Just a question. Even if the complaint was continuous from this individual, it was frivolous and vexatious, the company wouldn't have the right to get rid of this person if it was an ongoing occurrence?

Ms. Marlene Jennings: This makes it quite clear that the employee, acting in good faith and on the basis of reasonable belief, files a complaint. If the commissioner, upon receipt of that complaint and on verification or investigation of that complaint, finds that that complaint has been made in bad faith or is a vexatious or frivolous complaint, he or she will state that in his or her report, in which case this section doesn't come into play.

Mr. Jim Jones: But there is a whistle-blower, right?

Ms. Marlene Jennings: Which means that the employer then has all legal remedies available to him or her against that employee, or the other organization that contracts, whether it's an independent worker, consultant, autonomous worker, whatever, to protect itself against whatever damages it may have.

So if it's an employee, it could be disciplinary actions under the labour code of the particular province or the federal labour code. If it's an independent contractor and the organization has suffered damages and the commissioner has found that the complaint was vexatious, made in bad faith, or frivolous, then the organization that was the object of the complaint would have full legal recourse, full access to whatever remedies are available, whether that be a lawsuit, disciplinary action, or whatever.

The Chair: Mr. White.

• 1815

Mr. Ted White: The intent of the amendment is a good one, but I'm not satisfied, as Mr. Jones clearly isn't, that it properly controls vexatious complaints. I'm not sure the explanation given by Ms. Jennings really takes care of that. The wording in the amendment doesn't really specify that if the complaint is vexatious or a harassment of the employer, basically, that it should be stopped and give the employer rights to dismissal.

The Chair: Ms. Jennings.

Ms. Marlene Jennings: Thank you. First of all, this amendment is exactly the same as we find under the Competition Act, which has already gone through Parliament. Secondly, if one looks at paragraphs 27.3(1)(a), (b), and (c), it specifies “the employee, acting in good faith and on the basis of reasonable belief”. If the commissioner has deemed the complaint to have been made in bad faith, then subclause 27.3(1) does not apply where it prohibits the employer from dismissing, suspending, demoting, disciplining, harassing, or otherwise to disadvantage an employee or denying an employee a benefit of employment. If the commissioner has deemed the complaint to have been made in bad faith, then there is no prohibition to the employer dismissing, suspending, or whatever, and, if it's an autonomous worker, from prevailing itself of whatever legal remedies there are, whether it be going before small claims court if they are eligible for that or going before superior court for damages. It's there precisely because it specifies “acting in good faith and on the basis of reasonable belief”. If it's on the basis of reasonable belief, then the commissioner cannot find the complaint to have been frivolous, vexatious, or made in bad faith.

The Chair: Mr. White.

Mr. Ted White: I had read the clause and I heard the explanation the first time around, but I would still put forward that an employee acting in a vexatious manner could be acting in good faith and on reasonable belief but simply not have the right information.

Ms. Marlene Jennings: No, not under law.

The Chair: Mr. Dubé.

Mr. Jim Jones: I just want to have a clarification.

The Chair: I have Mr. Dubé first, Mr. Jones. Mr. Dubé.

[Translation]

Mr. Antoine Dubé: The Liberal majority will certainly be surprised to hear me say that I think this idea makes a lot of sense. Currently, some people are protected by unions, so there would be no problem in their case, but other people are not unionized, and I think it would be extremely dangerous for them, if they enjoyed no protection whatsoever when they made a complaint against their employer. Obviously we want to avoid potential abuse, but we have been given an explanation with respect to that point: the Commissioner can use his own judgement and dismiss complaints that he considers unreasonable.

[English]

The Chair: Mr. Jones.

Mr. Jim Jones: What if it's another organization that complains? If there's a person on contract from another organization, what happens if that organization takes it out on the other organization? You can be on contract, so the organization B employee complains about the activities of organization A. Can they dismiss all contracts of organization B because of the whistle-blowing?

The Chair: Ms. Jennings.

Ms. Marlene Jennings: I apologize, Mr. Jones, my attention was taken away for a moment. If you would be kind—

Mr. Jim Jones: This is just applicable within an organization, right?

Ms. Marlene Jennings: No.

The Chair: Ms. Black or Madame d'Auray.

Does that clarify it for you, Mr. Jones?

Mr. Jim Jones: You mentioned being under contract. A lot of companies have a lot of contract employees that work for, say, the government or another organization. If that person complains about something irregular he sees happening in the organization, that company can take it out not only on the individual but also on the organization.

The Chair: Madame d'Auray.

Mr. Jim Jones: You're saying that he can't dismiss the contractor—

The Chair: I think the officials would like to comment on that, Mr. Jones.

Madame d'Auray.

Ms. Michelle d'Auray: I don't quite understand where the two organizations fit in.

• 1820

Mr. Jim Jones: You're talking about a contract. There could be an organization B. He works for organization A. He sees something irregular going on in organization A, so he blows the whistle. Let's say organization B has a lot of contracts with A. Not only can they take it out on the employee, but they can take it out on the organization.

Ms. Michelle d'Auray: You're asking if in the instance of an independent contractor it equals an organization.

Mr. Jim Jones: It could be an organization. I can be an independent contractor working for organization B. A lot of people in the computer industry have banded together to be contractors, and then they do contract work for a lot of the companies.

The Chair: We're not going to be able to resolve this right now and we have to vote, so we're going to have to adjourn. The clerk will send a notice around tomorrow morning advising you when our next clause-by-clause session will be.

I want to thank the departmental officials for being with us throughout the day, and I want to thank everyone for their cooperation.

The meeting is adjourned.