INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 8, 1998

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): Order.

Pursuant to an order of reference of the House dated Tuesday, November 3, 1998, this is consideration of Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.

[Translation]

Mr. Dubé, do you have a question?

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): Yes. I would like to know if we will be discussing the motion I tabled at the beginning or at the end of this afternoon's meeting.

[English]

The Chair: I prefer to do that at the end, because we don't have a quorum right now. You can't propose your motion right now. We don't have nine members. We do already have motions on at the end, so do you want to wait until the end? I'd have to rule it out of order right now, because we don't have nine people.

[Translation]

Mr. Antoine Dubé: We will wait until we have a quorum.

[English]

The Chair: We'd also need notice to consider it. All you could do today is propose it, and then we'd have to consider it at the next meeting.

Mr. Antoine Dubé: Okay.

The Chair: We'll hear the witnesses, and we'll proceed this way.

I want to welcome the Consumers' Association of Canada and the Public Interest Advocacy Centre here today. We have with us Ms. Rosalie Daly Todd, the former executive director and legal counsel; and Ms. Gail Lacombe, the president of the Consumers' Association of Canada; and we have Ms. Philippa Lawson, counsel for the Public Interest Advocacy Centre.

I would propose that both witnesses make their opening statements first, and then we'll move to questions jointly. Some questions may be for both of you simultaneously, or you may have a comment on a question that's not addressed to you. If you do, just let me know.

That being said, I would propose that we move forward in the order in which the witnesses are listed. That would mean the Consumers' Association of Canada would go first. Is that okay?

Ms. Gail Lacombe (President, Consumers' Association of Canada): Good afternoon. I will make the initial introduction as the president of the Consumers' Association of Canada, and Rosalie Todd, our former executive director and legal counsel, will do the major part of the presentation.

[Translation]

The Consumers' Association of Canada is an independent, non-profit, volunteer-based organization that has represented the interests of consumers for more than 50 years. Its mandate is to inform and educate consumers on marketplace issues, to advocate for consumers before government and industry and to work with government and industry to solve marketplace problems.

All CAC policies on specific issues are set with certain key principles as guides. These principles are the right to choose, the right to be informed, the right to safety, the right to be heard and the right to redress.

CAC is pleased to present our views on Bill C-54: Personal Information and Electronic Documents Act. We will begin with a brief history of CAC's involvement in electronic commerce issues. Then we will make some general comments before dealing with specific provisions of Bill C-54.

Rosalie, you have the floor.

[English]

Ms. Rosalie Daly Todd (Former Executive Director and Legal Counsel, Consumers' Association of Canada): Thank you, Gail.

The Consumers' Association of Canada's interest in electronic commerce dates back to the 1980s, long before the term “electronic commerce” was coined. We first became involved in the Payment Automations and Communications Exchange, better known as PACE. PACE was composed of government and industry representatives and a single CAC consumer rep. PACE examined policy issues anticipated to emerge as Canadian payment systems made more use of electronic technology. Later, Industry Canada sponsored the electronic funds transfer working group—which still exists today—and CAC was and is a part of that group. That group's mandate has been broadened to include Internet payments. EFT is the first voluntary code developed with consumer participation. It is considered by all parties to be reasonable successful.

Electronic commerce became a priority with the Information Highway Advisory Council, and CAC had the only consumer representative on that group. We've also participated in Industry Canada working groups, and in electronic commerce issues through the Standards Council of Canada and the Canadian Standards Association, the CSA. We're also represented on the committee that developed the privacy code, CSA standard Q-830, from which Bill C-54 draws many of its elements. CAC is also involved in the international debate on privacy protection.

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At the 1997 meeting of the consumer policy committee of the International Organization for Standardization, the Australian delegation pointed out the need for an international standard to protect consumers doing business on the Internet. For the purposes of study and expansion, this recommendation was passed on to a small working group, with the intent of passing a resolution at the 1998 meeting. Several CAC volunteers were part of that working group. The resolution passed in 1998, and it will be going to the full ISO council. CAC is pleased to be able to draw upon all of this expertise on electronic commerce and in privacy issues in making its recommendations today concerning Bill C-54.

First of all, I would like to make some general comments on part 1 of the bill, “Protection of Personal Information in the Private Sector”.

First of all, the Consumers' Association of Canada commends the federal government for moving to legislate on the basis of the CSA standard. This approach has the virtue of building on a consensus developed over a period of some five years.

We also believe the general principles, such as those in the CSA privacy code, are more appropriate guidelines for privacy protection in a changing marketplace than are detailed regulations. However, we regret that Bill C-54 does not follow the CSA's lead in having industry associations adopt codes of practice. We believe that such a provision would better implement the principles embodied in the proposed legislation. We note that the MacKay task force on the future of financial services recommended the adoption of codes of practice for privacy protection in the financial sector.

We also regret that Bill C-54 makes no provision for audits as a general practice, only on reasonable grounds. The determination of “reasonable grounds” will be left to the privacy commissioner. In contrast, we support the MacKay task force's recommendation for the financial sector that would require the Office of the Superintendent of Financial Institutions periodically to approve each firm's code and audit practices.

More generally, we believe the privacy protection regimes need to be proactive, not reactive. Complaint-driven systems generally are unsatisfactory. In most cases, consumers are unlikely to know their privacy has been violated until the event has occurred. It's also difficult for them to discover who is responsible. If they do discover who is responsible, it's hard to put a monetary value on the consequences of the violation. This is partially addressed in Bill C-54, although for many potential violators a cap of $20,000 on punitive damages amounts to little more than a licence to do business.

CAC has consistently favoured a proactive approach. For sensitive data, such as financial information and health records, this would involve making the commissioner responsible for approving initial codes of procedure. Afterwards, the firms involved would be responsible for arranging periodic audits, much like financial audits are performed.

We recognize that our approach could involve adding substantial resources to the commissioner's office and could impose some added costs on firms handling sensitive data. In our opinion, however, any added costs to the system would be amply justified by substantially greater privacy protection than Bill C-54 now provides.

We have some comments on the preamble and on some specific clauses, but I think our general point is basically that Bill C-54's preamble makes reference to “promoting” electronic commerce. This should be reworded. Laws are usually associated with societal values. Here, what Canadians value is privacy.

Promoting electronic commerce and protecting personal information are quite different. Protection of personal information should be the focus of Bill C-54. It is essential that the protection of personal information applies equally to electronic and traditional forms of commerce. CAC also supports giving legal recognition to electronic documents. However, the protection of personal information and electronic documents as electronic evidence are separate issues, and they should be dealt with in two separate bills. CAC therefore suggests that the preamble of Bill C-54 be reworded to read:

An Act that provides for the protection of personal information that is collected, used or disclosed electronically or otherwise.

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We have several comments on definitions that should be broadened, in particular the definition of “organization” and the definition of “record”, but I'll let you look at our submission for the specific comments. We're also concerned about the definition of “federal work, undertaking or business”, and we're concerned about some of the things it might apply to. For example, does it apply to private sector data companies that contract to a provincial government to collect, sort, use or distribute that province's health data? Nor are we clear that the definition of “record” would include such things as x-rays.

Also, under the purpose of the bill, we agree that Bill C-54's purpose recognizes, as it should, the right to privacy with respect to personal information. However, we want to reinforce our recommendation that electronic documents should be dealt with in a separate bill. If our recommendation is not taken, though, then the right to privacy should be repeated and reinforced under Bill C-54's electronic documents section. This would make it clear that privacy applies under this section, as it does when non-electronic forms of collection, use and disclosure of personal information are used.

We're also concerned about the application of the bill and the blanket exemption given to journalistic, artistic and literary communities. To our knowledge, there has not been any public consultation on this specific aspect of the bill, and we are concerned that there be some parameters set for these sectors. The journalistic, artistic and literary communities should not be given free reign to use personal information without consent.

We also have concerns under some of the provisions concerning collection without knowledge or consent. Collection of personal information without the knowledge of the individual must be the exception, not the rule. We have concerns about the clarity of paragraph 7(1)(a). Paragraph 7(1)(b) should also be clearer, as its intent is not transparent. Again, under 7(1)(c), we have concerns about the broad exemption given to journalistic, artistic and literary communities.

We also are concerned that information used for statistical or scholarly study or research purposes under paragraph 7(2)(c) will be unidentifiable. With this understanding, the purpose and need for 7(3)(f) are not clear to us and are of concern.

We also have concerns about the costs of responding. There is no outline of what the costs would cover. Costs should be reasonable and designed to cover actual costs of copying, searching for information and mailing. CAC suggests setting a maximum cost at $20. Without such a limit, charges could go far beyond recovering expenses directly involved in meeting a request, and such charges could be designed to prohibit or could have the effect of prohibiting requests from people of modest means. This would result in legislation accessible to a minority of Canadians, which is surely not the legislative intent.

We're also concerned about the powers given to the commissioner. Will Canadians go to the commissioner if he or she has no power to order redress? CAC believes the commissioner should be empowered to make rulings and orders, not just recommendations. The commissioner's recommendations should be binding. Courts should be used only for the purpose of seeking an appeal of the commissioner's decision. Under clause 16, courts also should be able to make a cost award to cover the complainant's legal costs.

On part 2, “Electronic Documents”, we support the federal government's initiative to provide a legal framework for digital signatures. Electronic commerce will not realize its potential until business and consumers can have confidence in the authenticity of documents and the finality of payments.

In addition, with our long experience with regulatory interventions, there must be a way found to control the volume of paper evidence. We support the use of electronic evidence in regulatory proceedings. We anticipate that more detailed information will be put forward on the topic of electronic commerce during this consultative process. We request the opportunity to make a further submission to the committee in writing if this additional information appears to raise consumer issues.

We also have some questions about the definitions, but I think my five minutes are running out. I therefore will not go into them, but I hope you'll read our presentation.

In closing, I want to say that the Consumers' Association of Canada wishes again to commend the authors of Bill C-54 for building this legislation upon CSA standard Q-830. We interpret this initiative as a genuine concern for and commitment to protect personal information.

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The Consumers' Association of Canada advocates the best interests of Canadian consumers in the marketplace. We have a long history of dealing with various elements of electronic commerce. We also have experience dealing with issues of privacy protection, domestically and internationally. Today we've brought forward a number of comments and recommendations that we believe will benefit all major parties in the marketplace—consumers, government, and industry.

Thank you on behalf of the Consumers' Association for giving us this opportunity to address the committee. We hope to be able to make follow-up comments in writing in response to consumer issues that may arise through other submissions.

Thank you.

The Chair: Thank you very much.

I'm now going to turn it over to Ms. Lawson for her presentation.

Ms. Philippa Lawson (Counsel, Public Interest Advocacy Centre): Thank you very much, Madam Chair. Good afternoon, members of the committee. I should extend the regrets of Michael Janigan, executive director of the Public Interest Advocacy Centre, who meant to be here this afternoon but was called away on a family emergency.

I think all of you have copies of our written submissions, which would take much longer than five minutes to set out, so I just plan to make a few comments here.

We'd like to begin by congratulating the Minister of Industry and his government on introducing a bill designed to provide Canadians with control over their personal information in the private sector. We feel this is an extremely important initiative and one that is long overdue. Privacy is a fundamental human right recognized in all major international treaties and agreements on human rights. It underpins human dignity and key democratic values such as freedom of expression and association.

Over 40 countries and jurisdictions have enacted or are in the process of enacting comprehensive privacy and data protection laws. Canada is left part of a growing chorus of legislators responding to public demand for statutory recognition of the right to control over one's personal information. Patchwork protection is not good enough, and in that respect we heartily commend the federal government on its exercise of federal powers, in cooperation with the provinces, to provide Canadians with more comprehensive privacy protection.

Another excellent aspect of this bill is the power given to the privacy commissioner to publicize wrongdoing. Publicity will be a critical tool for obtaining compliance with privacy standards. We are also especially pleased the government has seen fit to protect personal information, even where it is publicly available. Just because certain personal information is available to the public doesn't mean the individual has consented to its use for any and all purposes.

While we therefore strongly support this legislative initiative, we believe it can be significantly improved with certain amendments. We've distributed the document with proposed amendments that in our view would tighten and strengthen the bill. They would also go a long way toward meeting the concerns expressed by the Quebec privacy commissioner about relative weaknesses in this bill versus the Quebec privacy legislation.

I don't have time to go through each proposed amendment, so I'm just going to mention some of the more critical ones here.

First, privacy rights should stand on their own legislative ground. By placing them in the context of an act to support and promote electronic commerce, the scope of their application becomes unclear. If personal information is to be protected in all forms of commerce, let's not confuse the issue by combining such protections with separate initiatives specific to electronic commerce.

Second, as currently drafted, the bill requires complainants who seek enforcement of their rights to go to the Federal Court. It's unrealistic to expect any but the most determined and financially able individuals to use this avenue. Much more effective would be a small expert tribunal to which individuals could take their unresolved complaints at minimal effort and cost.

Third, given the invisible nature of privacy violations, the commissioner should be empowered to conduct audits even where no formal complaints have been laid. For the same reason, the bill should provide protection to whistle-blowers.

Fourth, two key deficiencies in the CSA code should be corrected in this legislation. These are the lack of any limitation on purposes for which personal information can be collected, used, or disclosed; and the failure to require notification to the individual in lieu of consent where explicit consent is not required.

Finally, some of the exceptions to the rule of consent in clause 7 need to be tightened up. In particular, paragraph 7(1)(b) creates an enormous loophole the way it is currently worded, especially since there's no requirement for purposes to be legitimate or reasonable. I think this was unintended, and we urge you to amend this clause as proposed.

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Finally, paragraphs 7(2)(c) and 7(3)(f), which deal with exceptions for scholarly research and statistical purposes, are far too broadly worded. We urge you to consider our written comments and proposed amendments with respect to these particular exceptions.

Thank you very much.

The Chair: Thank you very much, Ms. Lawson.

I'm going to turn to questions and answers. If a question is not directed to you, and you have a comment, just let me know or give me a signal. That would be great.

I'm going to start with Mr. Jaffer.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you, Madam Chair.

My first question is going to go to Ms. Todd from the consumers group. I'm curious; I'd like to hear your opinion. Currently we have a situation where consumer protection laws generally fall under provincial jurisdiction. This is obviously a federal bill. There's much concern that when we're developing privacy laws that try to have a broad or almost international scale linked to electronic commerce, there are going to be gaps in consumer protection when it comes to how the provinces deal with that. I'm curious to hear your opinion on that and what you would recommend in that area.

Ms. Rosalie Daly Todd: That's why we're here supporting this bill, because the federal government is proposing to use its trade and commerce powers to have federal legislation. And because we are the Consumers' Association, we approach the issue of privacy from the consumers' standpoint. We're most concerned with situations that would involve commercial transactions. Therefore, we're very supportive of this bill.

Mr. Rahim Jaffer: More specifically, then, wouldn't it also be just as important to deal—maybe your group's already doing this—with the specific provinces where there is a lack of consumer protection with regard to this bill? I'm wondering how you're approaching it from that angle, or whether you're just staying focused on the national level when it comes to this privacy protection.

Ms. Rosalie Daly Todd: Again, it's not that we wouldn't support provincial legislation, but as I believe Ms. Lawson mentioned, we don't want a patchwork of unequal protection across the country. That's why we're working here for what we consider to be a basic and appropriate level that would extend across Canada.

Mr. Rahim Jaffer: The other question I had was pertaining specifically—I think you raised the concern—to privacy with regard to the media. Basically, it seems the bill is broad and in effect is going to exempt the media to some extent when it comes to privacy protection. My question is whether you believe existing laws will be able to ensure that privacy is protected in this area of the media, or whether it should be revisited and strengthened where it pertains to the media.

Ms. Rosalie Daly Todd: We're not sure, which is why we raised the issue. Also, it's not just worded as a media exemption. It's also the “artistic” community. Well, how broad is the artistic community? We were not involved in any initial consultations; therefore we don't feel comfortable with the exemption. That's why we raised it.

Mr. Rahim Jaffer: I guess the only other question is—maybe you're raising it as such to revisit or evaluate the issue—would you also maybe be concerned that if we go too far, you're almost restricting the freedom of the press to do what it's pretty much created to do, which is to report news, often in private matters?

Ms. Rosalie Daly Todd: Again, we're talking about personal information of ordinary Canadians collected in commercial settings. I'm not sure how often that becomes a suitable comment for media disclosure at the individual level, and I think it's an issue that should be discussed. It could be that we are unnecessarily uncomfortable with this, but we haven't been involved in any discussions, nor have we heard any presentations, that would make us feel more comfortable.

Mr. Rahim Jaffer: Thank you, madam.

The Chair: Thank you very much, Mr. Jaffer.

Mr. Keyes.

Mr. Stan Keyes (Hamilton West, Lib.): Thank you, Madam Chair. I too have a question on the exemption regarding journalistic, artistic, and literary communities. From what I've heard, Madam Chair, from the witnesses, I think they're absolutely right, and I hope we'll be able to get some media representatives to come forward and tell us, from their perspective, what the problem would be if we did put down the necessary restrictions within the bill on those different communities. Can you give me any example, Ms. Todd, of how you would have a problem with the media or any literary community on this exemption?

Ms. Rosalie Daly Todd: Again, “media” to me means one thing, and “artistic community” means another.

Mr. Stan Keyes: Let's take the media first.

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Ms. Rosalie Daly Todd: Okay. I'll admit that I'm more familiar with the law in the United States than the one in Canada. But my understanding is that the media has at least a qualified privilege for events of public interest and their ability to discuss personal information. Again, I'm talking more U.S. than Canada. Canada is more restricted, to my knowledge, but it often depends upon public figure versus normal Canadian who is dragged into a news event.

Is there any limit on personal information concerning myself or another individual if they suddenly become subject to a public event? Maybe there isn't, but I think the issue should be raised.

Mr. Stan Keyes: Say you're Monica Lewinsky—

Ms. Rosalie Daly Todd: Oh, I don't think so!

Mr. Stan Keyes: —and all of a sudden the U.S. decides they are going to research and find out all this personal information. Are they more likely to get that information in the U.S. than they are in Canada today?

Ms. Rosalie Daly Todd: My understanding is that the U.S. gives more leeway to freedom of the press.

Mr. Stan Keyes: It's less restrictive.

Ms. Rosalie Daly Todd: It's less restrictive. That's my understanding. But I don't pretend to be an expert on this, and I'm here raising an issue that was raised not by lawyers but by the consumers in our organization who looked at this bill.

I personally was more concerned with the words “artistic community”. What does that mean? We're raising it as an issue, and maybe it's a red herring, but we'd like more information on it.

Mr. Stan Keyes: Thank you for raising it. If I'm selling sleigh bells to somebody, does that make me an artist and therefore able to dive into anybody's personal information?

Ms. Rosalie Daly Todd: There's no definition of “artistic”.

Mr. Stan Keyes: Exactly.

Thank you very much, Ms. Todd, and thank you, Madam Chair.

The Chair: Thank you very much, Mr. Keyes.

[Translation]

Mr. Dubé, please.

Mr. Antoine Dubé: My Reform Party colleague was concerned about duplication of legislation, especially in Quebec. I'd like to remind you that all the provincial ministers of justice, not only the minister from Quebec, have asked that the bill at the federal level be withdrawn because it constituted considerable intrusion into their area of jurisdiction. I would like to hear your opinion about that. The provincial ministers of justice are quite important people.

The Public Interest Advocacy Centre even suggests the possibility of splitting the bill in two. We may be prepared to support that recommendation. You seem to be more concerned with the issue of personal information. Don't you have the impression that there are many different bills within this one?

Aren't you afraid that if there is duplication of this bill at the federal and provincial levels, Quebec will be forced to back down even though it had passed a bill five years ago that is working well and that everyone feels is a good one? Why should Quebec simply accept this legislation which, as you said yourselves, contains deficiencies that you would recommend be corrected? I'm asking you to put yourself in the shoes of Quebeckers and tell me why we should be forced to accept legislation that is not as good as the one we currently have in our province.

[English]

Ms. Philippa Lawson: I think I've already addressed the question of federal-provincial jurisdiction. I believe the way the federal government has proceeded, first of all, giving provinces other than Quebec three years to develop their own legislation, allows for cooperation between the jurisdictions. In any case, where there are questions of overlap, as there are already in other spheres of activity under our Constitution and the division of powers set up so long ago, of course we expect the two jurisdictions to cooperate to ensure that consumers and Canadians have proper recourse. I don't think that should be a problem.

In terms of dividing the bill, we have not provided comments on the section dealing with electronic documents and evidence. I've looked purely at part 1 of the bill, which deals with the protection of personal information. In my view, that is a consolidated piece of legislation that deserves to stand on its own in one piece of legislation.

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The third question you raised was in terms of the impact on Quebec citizens and the fact that you have a law in place right now. First of all, I would state that I don't believe the Quebec law is a perfect law either. I think Bill C-54 can be improved. I'm sure Bill 68 in Quebec can be improved as well.

If you make the amendments we're proposing, then I think consumers inside and outside of Quebec who are dealing with companies with international and interprovincial flows of data will have much better protection.

The Chair: Ms. Daly Todd.

Ms. Rosalie Daly Todd: I agree with what Ms. Lawson said.

I just want to make two points. One is that we agree with the submission. I probably didn't make it as clear as I should have in the CAC submission that we also believe there appear to be two different subject matters grafted together that would be more appropriate in two bills. So we agree on this.

Also, I don't think there's any perfect piece of legislation. This is an area in which there's a need across Canada, particularly in a commercial setting. Therefore, we're here trying to make better what we think is basically a very good piece of legislation.

The Chair: Ms. Lawson, did you have something else you wanted to add?

Ms. Philippa Lawson: Yes. I just have some specific remarks on the Quebec legislation. There are two areas where I personally find it deficient. Unlike in Bill C-54, there's no consumer redress or provision for damages. We agree with the Consumers' Association of Canada that the $20,000 limit is really far too low for punitive damages, but there's no similar provision in Quebec. It's simply more of a quasi-criminal type of approach.

Second, the Quebec bill does contain a fairly expansive exception for what's referred to as nominative lists. I think this is specifically for direct marketers. It's publicly available information such as the telephone book, for example, which doesn't exist in Bill C-54.

The Chair: Thank you.

Ms. Lacombe, did you want to add something as well?

[Translation]

Ms. Gail Lacombe: Mr. Dubé, I am the President of CAC and I live in Montreal. Unfortunately, we haven't yet had a chance to read the legislation passed by Quebec. I have never even seen it, nor has Ms. Todd. We will surely take the time to read it and we will send you our written comments later.

Mr. Antoine Dubé: Since this legislation was passed in Quebec five years ago, I'm somewhat surprised that you haven't yet familiarized yourselves with it. I don't want to accuse you of anything, but I must point out that it was passed and implemented five years ago and stipulates that it must be reviewed every five years. We can certainly take into account Ms. Lawson's suggestion to improve it. I get the impression I did not receive a clear answer from you.

This dual existence of legislation governing the same thing in Quebec—

[English]

The Chair: Mr. Dubé, I have to move on. Your time has expired. I apologize.

Madam Jennings, please.

[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I wish to thank our witnesses. I greatly appreciated your comments, criticisms and suggestions, and I would like you to clarify a few points that you've raised. Do you believe that protection of privileged information should apply to all commercial activities and not only to electronic commercial activities?

I'm very concerned about the fact that according to the wording of Bill C-54, the Commissioner is not given any decision-making power. He cannot begin an audit of a company on his own initiative; he must wait until a complaint has been filed before he can act.

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I'm also concerned about the fact that the bill stipulates that the Federal Court will act as the appeal level since this court is one of general jurisdiction in the administrative arena. I feel that the production of private information is part of a very specialized field. It may be useful to consider bringing cases before a specialized appeals tribunal.

I would like you to clarify your thoughts about these three points. Thank you.

[English]

The Chair: Ms. Daly Todd.

Ms. Rosalie Daly Todd: To me, you're very eloquently expressing a combination of what CAC is saying and what PIAC is saying. The Consumers' Association of Canada believes the commissioner should be able to initiate audits, and we also believe most of the powers proposed in clauses 14 and, I believe, 16 should apply to the commissioner and not to the courts. I agree with you with regard to the Federal Court. We did not put that in our submission. But I think PIAC has suggested that a tribunal would be more appropriate. So, yes, you are making a very good case for a combination of both presentations.

The Chair: Ms. Lawson.

Ms. Philippa Lawson: I would just add that we have thought a lot about this issue as to who should have the binding powers to make orders and to have them enforced. Originally we thought that should be in the commissioner's hands, the way it is in Quebec, where the complainant can go to the commissioner and get an order right there and then at minimal cost, it's easy, the whole thing. The person you complain to gives the order.

First of all, it involves providing the commissioner with far more resources than he has now. I think the commissioner is going to need a lot more resources anyway, even if you don't give him binding powers. We don't want the commissioner to be held back in terms of his more educational, promotional, and publicity-type activities.

I followed what the federal privacy commissioner has been saying, and he's more comfortable with the non-binding power approach. That's why we are now very strongly advocating the establishment of a small expert tribunal. I don't think we're talking about a lot of money here, but it's something that is going to be needed if this legislation is going to be truly effective for Canadians.

The Chair: Do you have another question, Madam Jennings?

[Translation]

Ms. Marlene Jennings: No thank you, not for now.

[English]

The Chair: Thank you.

Mr. Axworthy.

Mr. Chris Axworthy (Saskatoon—Rosetown—Biggar, NDP): Thank you for your presentations.

I'll ask a question about this towards the end. I'm a little bit puzzled that with the number of concerns you have, you're still supportive of the legislation. I suppose a few steps forward are better than going the whole way. I'd be interested if you would give some indication as to how close you were, then, to rejecting support for the legislation based upon what seems to me to be quite significant concerns about privacy protection. I have an example that might indicate that.

Basically, I have two questions prior to that. The privacy standards are basically in the schedule to the legislation. I wonder if that concerns you, the ability to make changes by Order in Council without coming to Parliament. I appreciate that there are detailed changes that might have to be made, but it does, I think, open up the possibility of governments, in a relatively secret way, making changes that might not be useful in terms of the privacy of individuals. So I wonder if you have any concerns about that.

My other question is with regard to the balance, and perhaps I can give an example. It has been suggested that information on a person's travel habits, for example, might be quite valuable. It's obviously very valuable to marketers. Because of the purchase of tickets, an airline would have a lot of information as to where you stay and the kinds of things you do. That might be interesting to Visa companies, direct mailing companies, and a whole bunch of other people. Travel agents will be faced with that information being presented by them to airline companies. Travel agents are governed by provincial legislation. Airlines are governed by this legislation.

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What faith do you have, or do you have any concerns, that this kind of information would be protected from misuse by, for example, airline companies who wanted to use that information to assist others involved in direct mail. My understanding is that the larger airlines view their information-gathering processes and so on to be in many respects as valuable as their travel business, which is what they are supposed to be in.

So there are a couple of questions there about the privacy standards being in the schedule and whether or not that presents any problems, and about this particular case as an example of how information can easily get into the wrong hands. I wonder whether you think this legislation would adequately protect against that.

That, then, brings me to the question of balance. How close were you to not supporting this legislation based upon the significant failings you recognized?

Ms. Rosalie Daly Todd: As to the point you make about the schedule, the Consumers' Association of Canada is a volunteer group, and we're very much involved in the CSA standard. Therefore, they were not as concerned about having it be the basis of this legislation. With regard to the point you were making about future revisions to that standard, we're not sure they're always going to be forward looking and not regressive. Therefore, I myself have a concern about it. But the organization was not anywhere near rejecting the legislation because of that, because they have been very much a part of that system, and they believe in it.

On the point you raised about the travel information, I'd have to sit down with the bill, but my gut feeling is that it would be covered. But you certainly raise a good example, and it's something we would want covered by the legislation.

The Chair: Ms. Lawson.

Ms. Philippa Lawson: Starting out with the question of why we are supportive when we have so many proposed amendments, and I think you can take it that it is qualified support in that respect, I think there are really two things happening here. We see this as progress, and we don't want to stop that. This protection of personal information needs to be legislated, and it needs to be legislated across the board in Canada. The federal government needs to exercise its powers. We see this as really building a house, and this is the framework. We do need to add windows, doors, etc., but at least we get the framework there.

The other thing, of course, is that there is a five-year review, and hopefully at that time the bill can be improved.

In terms of the schedule, yes, we are also uncomfortable, although I would note that the cabinet revision powers are limited to reflecting changes the CSA has made to its code. We would prefer to see those standards set out very clearly in legislative language in the legislation and changed only through a process such as this.

Finally, on the question of travel information, which is an excellent point, I think that's again one of the reasons we support the federal government extending its federal jurisdiction in three years' time. At that time there wouldn't be a problem. All of the jurisdictional information flows would be covered. I would just point out, though, that there is an important international aspect to this problem, and international airline companies may well be collecting it. This is why it's so important for Canada to have federal legislation and to be active at the international level with other countries to ensure there are international standards.

Thank you.

The Chair: Thank you very much, Mr. Axworthy.

Mr. Shepherd, please.

Mr. Alex Shepherd (Durham, Lib.): Thank you.

I have a number of questions, and I'll see if I can get them all off here.

First of all, when the privacy commissioner was before us, he talked about the issue of non-binding legislation. You are recommending a harder line in the sense of his having the right of rulings and orders. He described the idea of suasion or embarrassment of large, well-known corporations, so that this was a way to deal with this legislation. I wonder whether in today's world, where in fact more and more smaller and smaller companies are starting up, which is the way the world is going, that is relevant any more.

Ms. Rosalie Daly Todd: And they're more and more competitive, so I'm not sure that suasion will do it. That's why we're recommending he have more clout. Will consumers bother to go to the commissioner if all he can do is make recommendations?

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Mr. Alex Shepherd: There's another question that I have here, and some other witnesses have brought it forward as well. It concerns the cost of access for information from organizations. You talked about $20. I think a lot of people are having a hard time getting their heads around that, because it obviously depends on the institution or organization you're dealing with. How do you prevent abuse if people are just making unnecessary requests of these organizations, when it may in fact cost those organizations $100 or $150 or $200 just to process that request for access to information? In other words, applying a simple formula of $20 to one company may be reasonable, but to others it's unreasonable.

Is there some other way to deal with that issue?

Ms. Rosalie Daly Todd: I think you work into the legislation the word “reasonable”, and then leave room for some appeal to the commissioner. That's off the top of my head, but you're raising a very good point. We were looking at it from the other side, which was that of corporations making it prohibitive, and possibly even deliberately so. We therefore wanted some maximum or some amount specified, but there could be enough leeway to allow a corporation that's faced with a prohibitive request to then go to the commissioner to get relief.

Mr. Alex Shepherd: You weren't very happy with the $20,000 in punitive damages. What is a reasonable limit?

Ms. Rosalie Daly Todd: I would be speculating. We haven't given it that much consideration. It just seemed that $20,000, to some of those bigger organizations, is nothing. You want something that carries clout and makes them want to comply with the legislation.

The Chair: Ms. Lawson.

Ms. Philippa Lawson: We think there should be no limit on the punitive damages. We think that with the courts or the tribunals in Canada, there's nothing to fear in Canada about excessively high damage awards. The decision-makers need to have the flexibility to determine an appropriate penalty in the specific circumstances that they face.

The Chair: Last question, Mr. Shepherd.

Mr. Alex Shepherd: On your interpretation of paragraph 7(1)(b), presumably you don't like the wording “defeat the purpose or prejudice the use for which the information”. Presumably, we're saying that if the use was something ridiculous, they could simply collect the information as they so desire. Is that your observation of how to interpret that?

Ms. Philippa Lawson: Precisely, and that's the concern. If you don't limit the purpose, then the purpose could be objectionable. It could be a political party collecting information on campaigning or whatever. I think we need to limit the purpose. I don't think the second part of paragraph 7(1)(b) belongs there or is needed. I think paragraph 7(1)(b) is all about allowing law enforcement agencies to do their work properly. It's far too broadly worded.

Ms. Rosalie Daly Todd: And it should say so if that is the intent. It's confusing as it's written.

Ms. Philippa Lawson: We've proposed some specific wording there that we would certainly be happy with.

The Chair: Thank you.

Mr. Jaffer, did you have any more questions?

Mr. Rahim Jaffer: Yes, and it's just a general, quick question that's open to anyone.

Bill C-54 is based on a CSA code that was voluntary initially. The government has taken this and is moving it from a voluntary type of code to a mandatory regime now. Did you feel that under the current system privacy wasn't protected? Obviously you're advocating that it needs to be increased. What sort of evidence can you show, or what sorts of examples or case files would you bring up, that would really convince me, as a devil's advocate, that this is something that is really in the best interests of privacy?

Ms. Philippa Lawson: First of all, I'd point out that, as far as I'm aware, no corporation has yet registered a policy to the CSA code. A couple of industry associations have developed their own codes of practice based on the CSA code, but none of their members have registered. I think that's telling. It's been two years.

As for specific examples, the one that comes to mind is something I was called about recently. In Whitehorse, the residents found a private directory delivered to their doors one morning. This directory provided names, addresses, telephone numbers and occupations of individuals. A number of Whitehorse residents, including social workers, nurses and other people whose occupations can be very sensitive, had safety concerns and considered that information to be confidential. They never consented to its publication, but found their sensitive personal information published for all the world to see. This is the kind of thing that is going on right now.

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The Chair: Is that it?

Mr. Rahim Jaffer: That's really all.

The Chair: Thank you, Mr. Jaffer.

Mr. Lastewka.

Mr. Walt Lastewka (St. Catharines, Lib.): Thank you, Madam Chair. I have a number of questions.

I noticed at the beginning that you talked about definitions and so forth, whether it's “organization” or “record” or “data”. I'm a little concerned that we got into that, especially when you said something about “federal work”. Here, the legislators have used the Canada Labour Code as the source for the definition, but you're trying to change it. Is this now a debate between legal people about what is legislated or not?

Ms. Rosalie Daly Todd: The presentation was put together by volunteers who were trying to take their privacy concerns and translate them into this legislation. When it came to a second definition, they felt “data” as it's defined in the second part of the bill was more appropriate, because it's more broadly based. They therefore suggested using that definition. They had a question about whether “partnership” would be defined broadly enough to encompass in practice some.... I think they were thinking of the health care field, partnerships between charities, and provincial organizations and delivery services.

Mr. Walt Lastewka: You also made recommendations on “organization”. The term “organization” is already defined. It includes partnerships and it includes other things, yet you're saying it's not capturing things.

Ms. Rosalie Daly Todd: No, these are concerns that were raised to make sure it would capture them. If it's being interpreted that way today, that's fine.

Mr. Walt Lastewka: Let me go to the CSA standard. Ms. Lawson, you mentioned that you want it in the legislation rather than in the schedule, as we currently have it. My understanding is that incorporating the principles of the CSA standard within the legislation might cause the CSA to withdraw or cancel the standard. Are you prepared for that?

Ms. Philippa Lawson: I also understand that this was one of the concerns. Our suggestion was not to take the CSA standard holus-bolus and put it in the legislation. In fact, one of the concerns is all of the extraneous, non-legislative drafting of the CSA code. Our suggestion is that you take the concepts, the principles, in the CSA code. Those are the basic standards. As we said, we think they are deficient in two important respects and—

Mr. Walt Lastewka: Maybe I heard you wrong. What I heard you say to Mr. Axworthy was that you agree it should be in the legislation.

Ms. Philippa Lawson: Yes, but I was agreeing with the principles, the rights and obligations. The basic, underlying heart of the statute should be in the statute, not in the schedule.

Mr. Walt Lastewka: Also, there were some notes concerning the definition of “personal information”. My understanding is that personal information is information that is recorded in any form. Do you still have a concern with that?

Ms. Philippa Lawson: I don't have a concern with that. I like that definition.

Mr. Walt Lastewka: How about the other group?

Ms. Rosalie Daly Todd: Ditto.

Mr. Walt Lastewka: The other item we got into was the kinds of tribunals to organize and so forth. The commissioner was very clear to us that the number one item is education, in order to have Canadians understand what privacy should be and how they can help in making sure their privacy is not broken. He explained to us very clearly that this is the number one issue. Would you agree with that? In fact, he said ignorance is the problem right now.

Ms. Philippa Lawson: Yes, we would agree with that, but we do think it needs to be supplemented with effective methods of recourse, redress and penalties.

The Chair: Do you have any comments, or do you agree as well?

Ms. Rosalie Daly Todd: As we mentioned, complaint-driven systems are not very effective, so it's more than ignorance. It's also the opportunity and the knowledge that there is a problem, in that by the time it comes to the individual the horse is out.

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The Chair: This is your last question.

Mr. Walt Lastewka: The privacy commissioner made something perfectly clear to us. In fact, it was emphasized over and over again. Ms. Lawson, you said you had heard about it or had participated when he was there. The fact is that he said the number one item was education.

The number two item was to make sure he has the power. Although he asked for a few changes, his attitude was that with his suasion and ability to be able to publish and do other things, including going all the way up the ladder, he was satisfied that the bill would do what it was intended to do. Do you disagree?

Ms. Philippa Lawson: I haven't read through the entire submission of the privacy commissioner, but I believe we would like to see some further amendments beyond perhaps what he has requested. However, I think a number of his proposed amendments are similar or identical to ours.

Mr. Walt Lastewka: Maybe after you've had a chance to read some of his comments you could forward that to the committee. He made it very clear that he wanted to see the bill get through. There are areas where he asked for some changes. We've had different witnesses also ask for some amendments to the drafting and so forth. But as for the intent and schedule of the bill, the federal-provincial overlap, and being involved on a domestic and international basis, he was quite pleased with the bill. He wanted it to proceed.

Ms. Philippa Lawson: I think we're saying something very similar. We're saying that, overall, we want to see this go ahead. We think you have an opportunity here. It's a new piece of legislation. You're not talking about changing something that's already in place. You have an opportunity to make it the best you can now. We think you should take that opportunity, make some amendments, and get this bill passed.

The Chair: Thank you.

[Translation]

Mr. Dubé, please.

Mr. Antoine Dubé: I would like to get back to certain points that were raised earlier.

Ms. Lawson, you stated that the Quebec legislation contained no provisions concerning nominal lists. I would like to draw your attention to subsection 17.2—I will not read it because it will be quite long—but it deals specifically with that topic. You also stated that it contained no penal provisions. However, sections 91, 92 and 93 do indeed contain penal provisions.

I would like to say to Ms. Lacombe, who lives in Montreal, that the Quebec Commissioner on access to information gave a very specific opinion on the issue of a dual regime in Quebec if Bill C-54 was passed. I will send you a copy of that statement. There would be difficulties notably in the area of redress. That's a very important issue.

I was somewhat disappointed with your answers, although I do understand that you came here to give us your opinion. I'm not trying to corner you. You are all jurists. You must understand that in Quebec, we are concerned about this issue of dual legislation that would apply to the same citizens.

[English]

Ms. Philippa Lawson: I understand, but it won't be the first time consumers are facing the issue of double jurisdiction. We're dealing with the Constitution, which is written in a certain way that divides powers. Unfortunately, as history has progressed, some areas have been difficult, such as the area of consumer protection. Misleading advertising, for example, is dealt with at both federal and provincial levels. Consumers are able to deal with that.

I think when it comes to privacy problems in Quebec, a consumer may go to Quebec's privacy commissioner first. If it's clearly a matter of federal jurisdiction, Quebec's privacy commissioner can give that consumer the telephone number to call for the federal commissioner. They can get their recourse there.

Or if the Quebec commissioner wishes to proceed with the complaint and deal with it, then he will go ahead and do so. If at some point he reaches a limit such that the consumer has to be referred to the federal level, then so be it. I agree it may not be the best of all worlds, but I think the problem resides with the Constitution, not with this legislation.

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The Chair: Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I would like to discuss one last aspect. I've read the legislation like everyone else, probably twice. I noticed that the schedules deal with the principles stated in the national standard. As my colleague pointed out, initially this regime was to be voluntary, but here it is defined in schedules and not in the legislation. You dealt with this earlier, but the fact remains that these principles do not appear in the bill itself and are full of conditions. My colleague the member from Mercier and I believe that this legislation is extremely weak. I'm somewhat disturbed to see that you, who are concerned with protecting the private information of Canadians including Quebeckers, are satisfied with this.

[English]

Ms. Philippa Lawson: I would not characterize it as a very weak law. I believe it can be improved, but I think that with the improvements we've suggested it would in fact be a strong law.

The Chair: Thank you. Merci, Monsieur Dubé.

Ms. Daly Todd, did you wish to respond?

Ms. Rosalie Daly Todd: I was going to say that it's hard to have a law federally that will apply to multiple industries across the country, and that's why we favour the approach of the general principles from the CSA. I think they give the kind of flexibility that can make it work in a practical sense.

The Chair: Thank you.

Ms. Barnes.

Mrs. Sue Barnes (London West, Lib.): Thank you. I want to pursue comments in your paper about a complaint-driven process being less formidable a challenge for some of these people who are operating large commercial enterprises.

I think of something in the context of, say, data mining from a grocery store, based on a debit card or a grocery card. So somebody profiles my family by looking at my grocery purchases over some sense of time, sells that list, and target markets.

There's nothing in this bill right now. One shopper at a grocery store is not likely to make a complaint. Would you see any sense around some sort of class action or class concept of making complaints, that I make complaints on behalf of all shoppers of...?

Ms. Rosalie Daly Todd: Maybe I'm wrong, but I think PIAC has gone into that in their submission.

What we are saying is that the onus, the responsibility, is not on the consumer. It has to be put on industry through the standards to which they have to comply.

Mrs. Sue Barnes: Also, your comments were saying that the $20,000 is more like a slap on the wrist than a real general deterrent, and essentially I agree with you. It's a cost of doing business and certainly not of a deterrent value.

What would you substitute, or how would you change that? Are we talking quantum here, or are we talking something else?

Ms. Philippa Lawson: We propose that you take the limit off.

Mrs. Sue Barnes: So it would be open-ended.

Ms. Philippa Lawson: You allow the decision-maker to decide what the appropriate penalty is in the circumstances.

Mrs. Sue Barnes: That could be depending on who the violator is, obviously.

Ms. Philippa Lawson: Exactly. That $20,000 could be a significant penalty in some circumstances and, in others, just a licence fee for doing business.

Mrs. Sue Barnes: I like that suggestion.

Thank you very much. Those were all my questions.

The Chair: Thank you, Mrs. Barnes.

Mr. Axworthy or Mr. Riis, I wasn't sure if you had any questions. No?

Madame Jennings.

[Translation]

Ms. Marlene Jennings: I would like to get back to the issue of overlap in jurisdiction and tell you that as a Canadian and a Quebecker, I didn't appreciate hearing that the Constitution was poorly written and that we have to live with the consequences. I see this overlap in a positive way; this encourages us to work in co-operation, to be conciliatory and to display some creativity. This is an asset for Canadians and for our country.

One of my colleagues referred to the testimony by the current Commissioner, who prefers not to have executory powers. Although the current office holder may prefer things to be this way, I believe that legislation must stand up to the test of time and not necessarily be worded according to the person who currently occupies a particular position.

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Many people here can remember seeing someone doing his job in an extraordinary way and interpreting legislation so creatively that his jurisdiction is twice as broad as that of his predecessor. If the Commissioner has no executory powers, he must at the very least have the power to undertake audits on his own initiative. There should also be a specialized tribunal that would have such executory powers. I wanted to point that out.

[English]

The Chair: Do you have a question, Madame Jennings?

Ms. Marlene Jennings: No, I don't. I wanted to make that statement. I've made it and it's now on the record. Thank you.

The Chair: Thank you very much, Madame Jennings.

We have another issue to go in camera. I want to thank the witnesses for being here today.

I just wanted to clarify two things. One is that the schedule is part of the bill. It's not separate from the bill.

Secondly, you both commented on the fact that you thought Bill C-54 as it existed, if I heard you correctly, was good because it didn't have any exceptions, as the legislation does—it didn't list where all these things that were public information could be used. My understanding is that there is an amendment being proposed, or there are discussions taking place with different groups, that would, for example, allow the phone book to be used.

Ms. Lawson, maybe you can clarify that for me.

Ms. Philippa Lawson: Yes, I know the Canadian Direct Marketing Association is very concerned about the lack of any exception for publicly available information. Therefore, we addressed that issue in our written submission—

The Chair: Okay.

Ms. Philippa Lawson: —on page 6, under publicly available personal information. We've made some suggestions there, anticipating that you are going to hear from them about the need to include a new exception for publicly available information.

The Chair: Ms. Daly Todd, do you have any comments to add to that?

Ms. Rosalie Daly Todd: I've read the PIAC submission, and we particularly agree with the second point they make, that the individual has to have the right to be able to delete information that's already out there in the public domain without their consent.

The Chair: Thank you.

I want to thank you both for being here. As our hearings continue, we would appreciate your comments if you have the opportunity at all to monitor the different witnesses who come before us. I want to thank you for being here.

We're going to proceed in camera, so I'm going to ask everyone else to leave the room for that process.

[Editor's Note: Proceedings continue in camera]