INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 11, 1999

• 0901

[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): Order, please. This meeting is being held pursuant to an order of reference of the House dated Tuesday, November 3, 1998, 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.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde (Mercier, BQ): Madam Chair, I would like to raise a point of privilege. I would like to know why Mr. Jacques Frémont's name is not on the list of witnesses that we are to hear this afternoon, contrary to what was agreed upon with him. I know that his name should be on this list.

[English]

The Chair: Madame Lalonde, as far as I know, nothing was ever confirmed with Mr. Frémont. We were trying to arrange a constitutional session with three witnesses. They had been given a preliminary time and the other two were not available at the same time, so we've now asked them all to come on Monday. There was never any confirmation that they were going to be here today.

[Translation]

Ms. Francine Lalonde: Madam Chair, this does not correspond with the information that I obtained, according to which he should have been invited to come Thursday. His name was on the list that we received the night before last, but he is no longer on the list that we received yesterday morning. This is not the proper way to proceed. This person had made arrangements to come and it is unacceptable that we behave like this. Until now we have heard only four witnesses from Quebec. Mr. Frémont is an important person, and we need to hear him.

[English]

The Chair: Madame Lalonde, I'm not disagreeing that he may be an important witness. However, his name wasn't submitted until the week before. We agreed to try to accommodate another constitutional session. That required a balanced constitutional session and required two other witnesses to be available at the same time as Mr. Frémont. Mr. Frémont was advised that we were tentatively scheduling it for Thursday.

His name should never have appeared on any agenda or any witness list. I believe that was an error by the clerk's office. There was nothing confirmed for Thursday. It was only tentative. When the other two were not available, he was notified immediately that Thursday was not going to work.

We always do this with witnesses. We give them dates and we try to schedule other witnesses at the same time. If that doesn't work, we change the date. That's the standard procedure.

I apologize if you in any way feel that we're not trying to accommodate Mr. Frémont. We are trying to accommodate Mr. Frémont. If his name had been submitted in December or January or at the beginning of February, he would have been given plenty of notice for a meeting. Unfortunately, his name was submitted only the week before. We're doing our best to try to accommodate another constitutional session.

[Translation]

Ms. Francine Lalonde: When will this constitutional session take place?

[English]

The Chair: We've now scheduled it for Monday at 3.30 p.m., which is what I said yesterday. We had a number of witnesses we were trying to accommodate and I asked the committee's permission to have an additional meeting. Everyone agreed that we would have an additional meeting on Monday at 3.30 p.m.

• 0905

If they're unavailable on Monday, we'll try to work them into another time next week. As it is, we now have seven witnesses scheduled for next Thursday morning, I believe, at the same time. We're doing our best to try to accommodate all the witnesses. As it is, we'll be meeting six times next week. We could entertain an evening session as well. We are doing what we can to try to accommodate all the witnesses.

I understand that the clerk has been speaking with Mr. Frémont and a number of others. We'll try to work something out. If we can't set up a separate constitutional session, we'll just have to add them to a session that we already have, and you'll have to understand that. That's the best we can do.

[Translation]

Ms. Francine Lalonde: I will follow this closely. Thank you.

[English]

The Chair: That's your right.

I'd now like to welcome our witnesses today. With us we have Ms. Edith Cody-Rice, senior legal counsel with the Canadian Broadcasting Corporation, Ms. Cynthia Rathwell, vice-president of legal affairs for the Canadian Association of Broadcasters, and Ms. Sylvie Courtemanche, the senior vice-president of specialty and regulatory affairs for the association.

I'm very pleased to welcome you here today. I propose that you do your opening statements first, beginning with the Canadian Broadcasting Corporation, and then we'll proceed to questions.

Ms. Cody-Rice.

[Translation]

Ms. Edith Cody-Rice (Senior Legal Counsel, Canadian Broadcasting Corporation): Good morning, ladies and gentlemen.

[English]

I have come here today to represent the Canadian Broadcasting Corporation. I have been chosen to come here because I have done all the legal work on access to information and privacy within the corporation, and it was decided that I would be the best person to represent the corporation. I have been with the corporation for 16 years and have been involved in all aspects of the corporation. We're quite happy to answer any questions you may have.

We would like to support the Canadian Newspaper Association's brief on the journalistic, literary and artistic exemption. We think this is very important. We did not put in a brief to that subject ourselves because it would have said essentially the same as the Canadian Newspaper Association brief. We also support the Writer's Union brief. We see that there are some problems for individual writers, which may not apply to organizations like the CBC but are very important.

I did not have an opportunity to read the Canadian Association of Broadcasters' brief before I submitted the CBC's page-and-a-half brief. We also support their brief. It is very important, we feel, to maintain that exemption. We are happy to answer any questions you may have.

I would like to draw your attention, however, to just one other matter within the bill. The small brief that we've put in concentrates on some definitions. I just wanted to mention to the committee that it is very important—and I'm sure you can appreciate this—to examine carefully the definitions within the bill.

For example, we talk in our small brief about the definition of “organization”, and how there is a separate definition for “federal undertaking”. The organization definition covers a corporation, a person, etc., but it's not clear that a federal undertaking is covered in that definition. I think it would be, but as you know, all broadcasters are federal undertakings under the act.

An interesting question arose yesterday when Ms. Whelan said to the committee that she doesn't particularly like the idea of someone arriving at her door to get documents. The Privacy Commissioner and I were sitting in the back of the room and saying, “But that clause doesn't apply to an individual like Ms. Whelan.” I went home and looked at the bill last night and, indeed, it would apply to Ms. Whelan. I think that might be an unintended effect of the bill as drafted.

I'm just drawing your attention to the importance of paying attention to the definitions. Once this bill is passed into law, you know that it will be interpreted by generations of lawyers and judges and you know what they can do to legislation after it's drafted. It's very important to be very clear. As you know, unless an act is very clear, it can be interpreted in many ways. I'm sure you want to prevent misinterpretation of the intentions of the legislature.

[Translation]

That is all that I will say about this. I will now yield the floor to my colleagues from the Canadian Association of Broadcasters. I will be pleased to answer your questions. Thank you.

[English]

The Chair: Thank you very much, Ms. Cody-Rice.

Ms. Rathwell, please.

Ms. Cynthia A. Rathwell (Vice-President, Legal Affairs, Canadian Association of Broadcasters): Thank you. Good morning. I'm vice-president of legal affairs at the Canadian Association of Broadcasters, and with me this morning is Sylvie Courtemanche, senior vice-president of specialty and regulatory affairs at the association.

• 0910

The CAB is the representative of the majority of Canadian programming services, including private television and radio stations and networks and specialty television services. We thank you for this opportunity to appear before the committee to present private broadcasters' views with respect to Bill C-54.

The CAB appreciates the government's objectives in introducing this bill, particularly given the growing importance of electronic commerce. Today, we wish primarily to emphasize our strong support for the inclusion of a broad journalistic, literary and artistic exemption in the bill. The exemption rightfully recognizes the need for this legislation to be consistent with fundamental constitutional rights and for a balance between the two important democratic values of privacy and expression to be maintained.

Yesterday you heard from the Canadian Newspaper Association about all of the reasons why a journalistic, literary and artistic exemption is a key part of this legislation. We strongly support the CNA's written brief on the bill, which describes in detail the need to protect the public's right to information and the independence of the editorial process.

The guarantee of freedom of expression, which includes the right of the media to gather, receive and publish information, is not just an abstract idea in our Charter of Rights. As the Supreme Court of Canada has said:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democracy cannot exist without that freedom.

The court also went on to say:

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

It's not our belief, however, that such freedom should or indeed can be used irresponsibly to abuse or exploit persons who are the subject of news or artistic treatments.

The civil laws of libel and slander and the criminal laws against expression designed to engender hatred are effective checks against such abuse.

[Translation]

Ms. Sylvie Courtemanche (Senior Vice-President, Specialty and Regulatory Affairs, Canadian Association of Broadcasters): Radio and Television Broadcasters as businesses forming part of a tightly regulated system, are responsible for all content which they broadcast and are forbidden by broadcasting law and regulations from airing abusive comments or false or misleading news; in this regard, we would refer to section 5 of the Television Broadcasting Regulations, section 3 of the Specialty Services Regulations and section 3 of the Radio Regulations.

Not only are broadcasters required by law to ensure that their programs are fair and truthful, but they have long recognized this obligation on a voluntary basis through effective self-regulation. The Radio-Television News Directors Association published its code of ethics almost 30 years ago. It demands that broadcast journalists will not sensationalize new items, will not distort the news, and will always display respect for the dignity, privacy and the well-being of everyone with whom they deal. Similarly, the CAB's Code of Ethics, which is the condition of membership for all CAB members, requires that all news is to be presented with accuracy and without bias and more specifically, that:

News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be designed by the beliefs or opinions or desires of the station management, the editor or others engaged in its preparation or delivery.

Breaches of these codes sometimes, but rarely, occur. When they do, they are addressed and treated very seriously by the industry.

Both the RTNDA and the CAB Code of Ethics are administered by the Canadian Broadcast Standards Council, an independent body which receives and adjudicates complaints with respect to alleged breaches of the Codes. Council findings of ethical breaches must be aired during prime time by the offending broadcaster. This sanction is taken very seriously because it goes to the integrity and quality of the broadcasters' service and its credibility with its audience. There is a strong incentive, therefore, for news and all other programming to be of high quality, accurate and respectful of the dignity of people.

• 0915

We believe that in the great majority of cases, journalistic and artistic expression are properly carried out and that this is in the interest of society and the Canadian public. Were we to attempt to limit this expression in the guise of privacy protection legislation, this would be contrary to the Canadian Charter of Rights and Freedoms. Moreover, it would be superfluous, in view of the legal and self-regulatory framework that already exists to prevent the targeted abuses.

[English]

Ms. Cynthia Rathwell: As currently drafted, Bill C-54 contains some technical drafting oversights which we believe should be addressed to ensure that the journalistic, literary and artistic exemption provision of clause 4 is as clear and understandable as possible and is consistent with the charter. These are explained in appendix A, which is attached to our comments distributed today.

The CAB urges the committee to review these drafting issues and to make the changes recommended in the appendix.

Primary among the proposed changes is one that would make it clear that the exemption applies wherever personal information is collected, used or disclosed for journalistic, artistic or literary purposes, but only with respect to such purposes and not with respect to any other purpose.

As it stands, the exemption may be read to apply only where the information is collected solely for journalistic, artistic or literary purposes. That could mean, technically, that where there was a first purpose for the collection that was not journalistic, artistic or literary, even where that collection was carried out in full compliance with the act, the secondary use of that information for journalistic purposes would not be exempted.

For example, an organization might, in the course of personal data collection, discover information that the public has a strong interest in knowing—perhaps evidence of criminal impropriety. If the exemption does not make it clear that the collection of data for journalistic purposes is always exempted, it may well not satisfy the Charter of Rights, which allows freedom of expression to be limited only in very exceptional circumstances.

We noted at the beginning of our presentation that the CAB's comments today would deal primarily with the journalistic exemption. We strongly support the inclusion of a full journalistic exemption, both because it's consistent with the charter and because potential abuses are, as Sylvie said, already addressed through existing regulation and self-regulation.

We wish also to note that as federally regulated employers, private broadcasters are concerned with certain impacts of Bill C-54, as currently drafted, with respect to the collection, use and storage of, as well as access to, employee information.

The CAB is a member of FETCO, Federal Employers in Transportation and Communications, which appeared before this committee last week to explain employer views on the bill. We endorse the brief of FETCO and share their concerns.

That concludes our comments today. We thank you and we welcome the opportunity to answer your questions.

The Chair: Thank you very much, Ms. Rathwell. I'm going to turn this over to questions.

Mr. Jaffer, do you have any questions?

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Yes. I have a—

[Translation]

Ms. Francine Lalonde: Just a moment.

[English]

The Chair: Just a moment.

Madame Lalonde.

[Translation]

Ms. Francine Lalonde: The French document must be missing a word, because the text dealing with the third amendment finishes with an incomplete sentence.

[English]

The Chair: At the very end of the third amendment, there's a sentence missing in the French version?

[Translation]

Ms. Francine Lalonde: No, it's more than that. The whole recommendation is missing.

[English]

The Chair: The recommendation is not there.

[Translation]

Ms. Francine Lalonde: No.

[English]

The Chair: It's just the explanation, with no recommendation in the French version.

Maybe we can make a copy.

[Translation]

Ms. Francine Lalonde: Thank you for having lent me your copy, I will give it back to you a little later.

[English]

The Chair: Okay? I'm now going to deal with questions.

Mr. Jaffer.

Mr. Rahim Jaffer: Thank you, Madam Chair, and thank you to the witnesses for being here this morning.

My question is to Ms. Cody-Rice, initially. I wanted just a bit of clarification. Just before you started your remarks, you made reference to something that Madam Chair said or asked yesterday. Did you say that, under the current bill, the Privacy Commissioner can in fact enter a private home?

• 0920

Ms. Edith Cody-Rice: No. It was a comment that Madam Chair made in talking about the power of coming into premises and searching. There is an exemption here for a “dwelling-house”, it's true, but the impression I had was that this only applies to organizations and that therefore an individual, even if in her office, would not face this entry.

I went home and looked it over last night because I hadn't focused on that, and if you look at the definition of “organization”, it in effect includes a person. Madam Whelan is a person and therefore would be subject to that kind of entry into offices. Now perhaps that was intended in the bill. My view was that the bill was really aimed at organizations like the CBC—or even smaller organizations.

But there seems to be some inconsistency in the definitions in the bill, because the bill, in clause 4, then speaks, for example, of an “individual”, which is not defined. There appears to be some inconsistency in the way in which individuals, in particular, are defined in the bill. They are part of an organization under the definition, but they're also described as individuals in other portions of the bill. It creates some confusion as to whether an “individual” is subject to the same sanctions as an “organization”.

Mr. Rahim Jaffer: One of the things you might suggest, obviously, is to clarify that as it applies to the individual.

Ms. Edith Cody-Rice: Clarify it so that the intention of the bill is clear.

Mr. Rahim Jaffer: Yes. That is something we had been discussing in the past with a couple of other witnesses. It seemed to be clear to me with respect to the Privacy Commissioner that when it pertained to private dwellings like homes, obviously, there was a restriction on that.

Ms. Edith Cody-Rice: There is a restriction in the bill. That's right. Also, if you look at the schedule, which is, of course, taken from a model code that was a voluntary code, do the definitions in the bill apply to the schedule, which was drafted outside the purview of Parliament?

Mr. Rahim Jaffer: I have just one more general question. It pertains to the whole theme of exempting the media from this bill. I realize the importance of that and I've heard the arguments. One of my questions, which would just generally come up, I'm sure, from a number of organizations that deal with sensitive information, is this: if Bill C-54 protects a fundamental right to privacy, why wouldn't we apply it universally, obviously, to everyone equally? If the government is willing to be flexible with journalists and the press, why not with other industries that often have to deal with the same information to some extent? I just want to hear your comment on that.

Ms. Edith Cody-Rice: Do you want to start, Cynthia?

Ms. Cynthia Rathwell: Sure. I think the balancing act has to be done in light of the fact the entitlement of all Canadians, including journalists who work both in their capacity as journalists and sort of as servants of Canadians in providing them with information, is a right that is ensconced as a fundamental freedom in the charter itself. The right to privacy, as it will be embodied in this legislation, is a very valuable right.

The fact that the right to expression needs to be accepted in the context of a specific statute is necessary primarily because of its presence as a charter right, but also, the exception is appropriate in light of the fact that the courts already have a balancing mechanism in terms of the permissible scope of freedom of expression under the charter.

As you all probably know, section 1 of the charter is there to ensure that limits may occur, but those limits should always be demonstrable in the context of a democratic society. That check is in there. The courts have been very clear that they do not consider the section 1 expression right to be a licence to go ahead with untruthful publication. For that reason, we believe that the existing protections in the charter, coupled with an exemption in Bill C-54, are appropriate.

Ms. Edith Cody-Rice: I would just like to add to that. To give you an example of how this might work, there is no public interest exemption in the bill, as there is in the Access to Information Act, for example, and, I believe, as there is in the federal Privacy Act.

This exemption does not mean that organizations can freely give out information to the media. I read the evidence of previous committee meetings, which indicates that one or two of the committee members may have thought that. It does not mean that people who have the information for non-literary or non-journalistic reasons are free to give it to the media. However, if the media, journalists or artists acquire that information, they're able to use it for a limited purpose.

• 0925

The fact that people are not allowed to give information to anyone, including the public, is already a limitation on free speech of the individual and may be seen to be justified under the charter. But when you carry it to journalists, to artists and to creative activity, I do not think it would survive a charter challenge, and perhaps it shouldn't.

I'll just give you an example. Say, for example, you have someone come into your community who is setting up a shopping centre and who, you become aware, has been convicted of fraud, ten counts, three times, in the State of Texas. Are you allowed to reveal that information? There is no public interest exemption. Who could you reveal it to? You are not allowed to reveal that information. Is it in the public interest that you should be allowed to reveal such information? Perhaps it is in the public interest of your community that you should be allowed to reveal that information.

There is no public interest exemption in the bill. There is only the journalistic, artistic and literary exemption, and you may find you have to depend on that to get important information out. You, as an individual, if you are not collecting the information for that purpose, may not be free to reveal that information to anyone, including the journalists.

There are substantial limitations on what you can reveal under this bill. Already there's a limitation on your freedom of expression; should there be a further one?

Mr. Rahim Jaffer: Would you agree, then, that some sort of amendment to do with public interest should be included?

Ms. Edith Cody-Rice: I think it would be preferable if there were a public interest exemption. Just to give you an example, in the province of Quebec, the defamation act is different from those in the rest of Canada. It's a very intelligent defamation act, unlike those acts in the rest of Canada, under which you can make a 1000% effort but get one thing wrong and be liable for all the damages. In Quebec, that's not so.

On the other hand, in Quebec, truth is not an absolute defence in defamation, and it must be information revealed in the public interest. It does have an “in the public interest” exemption for the tort of defamation, and I think it would be advisable to have a public interest exemption here. The courts have tended to interpret that relatively narrowly, so it's not an opening of the floodgates.

Mr. Rahim Jaffer: Thank you.

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

Mr. Lastewka.

Mr. Walt Lastewka (St. Catharines, Lib.): Thank you, Madam Chair.

I read with interest the code that was presented, the broadcasters' journalistic code. I've heard you talk about balance and fairness a number of times.

I come from the riding where Mr. Bernardo lived and the French family lived and lives. On an ongoing basis, the broadcast industry, including yours, has sought to review the tapes and broadcast them.

In these last 10, 20 and 30 years, when we've switched more and more to the private lives of people, I find it interesting that you want to be fair but that when it comes to a victim or a victim's family, you want to continue to go to court. You continue to want to go to the courts to get your hands on these tapes to expose something that we all feel dreadfully about. Can you explain the fairness there?

Ms. Edith Cody-Rice: Yes. Those tapes were evidence in a trial. I have not personally reviewed the tapes, but one of my colleagues has and one of my colleagues is handling this matter in legal terms. Most of the tapes do not show the crimes. Most of the tapes, I understand, have to do with scenes like the scenes you saw on television of Ms. Homolka having a family Christmas party, etc.

• 0930

We did not ever have any intention of broadcasting or, indeed, really looking at the crime portions of the tapes, which are very offensive to everyone. We would never broadcast that. I don't think the Canadian public would ever accept that such a thing could be broadcast.

Most of the tape does not have to do with the crime, and it is that portion of the tape we would like to look at. There is a principle in Canadian law that whatever is presented in a court of law as evidence is part of the public record.

These are exceptional circumstances. There's no doubt about that.

Mr. Walt Lastewka: Let me continue with this. There are some private lives here—

Ms. Edith Cody-Rice: Yes, I agree.

Mr. Walt Lastewka: —and a couple of very private people.

Ms. Edith Cody-Rice: But the private lives that you are protecting in the tapes are the private lives of Karla Homolka and Paul Bernardo, because those are the people on the tapes for the most part, not the victims.

Mr. Walt Lastewka: But do you think it's fair to continue to harass, as I call it? You'll be doing that in the next two or three weeks and it will shown again, because this is the time of year during which that incident happened.

Ms. Edith Cody-Rice: It will be shown again?

Mr. Walt Lastewka: Well, it'll be information about what happened, as close as possible to whatever is on the tapes. When does the family get some privacy? Or are they stuck forever in order for you to hide behind “the public needs to know”?

Ms. Edith Cody-Rice: First of all, this is a very deep and disturbing story for the Canadian public, and it is true that people would like to know aspects of what happened. The public would like to know what kinds of families these victims were from and how this has affected the families and so on. I'm not sure that harassment would be a correct characterization of what has been going on. On the other hand, it must also be said that the families have willingly talked to the press. They have had great pain, we agree, but it is not the intention to harass or to cause them further pain.

I'm not sure that this will be brought forward again. You perhaps have information that I do not.

Mr. Walt Lastewka: Every Easter it's brought forward; it hasn't missed at all.

Ms. Edith Cody-Rice: But we are getting further from the event.

Mr. Walt Lastewka: I see a code that says, in article 3, that “broadcast journalists will not sensationalize news items and will resist pressures, whether from inside or outside”. You must have some exemptions on that.

Ms. Edith Cody-Rice: Actually, CBC is governed by the standards and procedures. We didn't give you that, but I would like to read you a portion of our journalistic policy book, if that would be of any assistance, with respect to the standards we're governed by.

Mr. Walt Lastewka: I wouldn't mind if you tabled it with the committee.

Ms. Edith Cody-Rice: Surely. This is a hard copy.

Mr. Walt Lastewka: You can forward it later on.

Ms. Edith Cody-Rice: Yes. The updated version is on-line.

Mr. Walt Lastewka: All right.

Ms. Edith Cody-Rice: May I read you just a portion of it?

Mr. Walt Lastewka: Sure.

Ms. Edith Cody-Rice: This is from the standards that govern our journalists, with respect to the standard of privacy:

An individual's right to privacy is cherished in Canada. Although the law does not deal extensively with the concept, the invasion of an individual's right to privacy is repugnant.

Privacy in its broadest sense means being left alone. It means protecting an individual's personal and private life from intrusion or exposure to public view.

Then, with respect to investigative reporting, which may differ from every news report you see in that it takes a longer time and you invest more resources in it because you're going to do a longer story, this is the standard:

It must be accepted that a person has the right to refuse to participate in a program. If it should be considered vital to the program to confront such a person with a camera or microphone and in the public interest to do so, permission of the senior officer in information programming must be obtained for such action.

We do govern ourselves by standards.

Mr. Walt Lastewka: I want to just switch over to the Code of Ethics of the Canadian Broadcast Standards Council. In article 3, is this an exemption for radio talk-show hosts?

Ms. Cynthia Rathwell: Sorry. Is this the CAB's Code of Ethics or the RTNDA's Code of Ethics? I provided you with two codes.

An hon. member: It's the RTNDA code.

• 0935

Ms. Cynthia Rathwell: No. There is no exemption for radio talk-show hosts. In fact, a number of cases have been adjudicated by the Canadian Broadcast Standards Council concerning the information that such hosts have conveyed and they have been sanctioned with respect to that sort of information.

This provision against sensationalism and article 4, which follows it and requires respect for the privacy of individuals who are the subjects of these kinds of shows, are enforced and taken quite seriously.

Mr. Walt Lastewka: Does the council work on complaints or does it do audits too?

Ms. Cynthia Rathwell: It works on a complaint basis.

Mr. Walt Lastewka: So until people complain, everything is ...?

Ms. Cynthia Rathwell: That's one way of looking at it. Another way of looking at it is that one individual with a complaint, among hundreds of thousands of listeners, can initiate a sanction against a broadcaster.

For example, I believe that happened recently with the Lorne Greene show in Ottawa. I think he received one complaint about his program, which wasn't in a privacy context but a human dignity context. His argument was that he had 100,000 listeners and only one complaint and that this was a bit unfair.

The way this code operates is that one person can initiate it and can succeed in having their interests represented.

An hon. member: As it should be.

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

[Translation]

Ms. Francine Lalonde, go ahead please.

Ms. Francine Lalonde: Thank you very much for your presentation. I understand that you are concerned specifically with paragraph 4(2)(c) and the points that should be consistent in the rest of the bill.

You have quoted the Quebec law, specifically, section 1 which states:

The present Act does not apply to the collection, retention, use or communication of journalistic material used for public information.

There's a difference between the wording "journalistic material used for public information" and the expression used here. You all agree that Bill C-54 should be amended in this regard, but only for this purpose and for no other.

Ms. Edith Cody-Rice: First, the law that I quoted is the Quebec libel law. I believe that it reflects great intelligence. I agree with Ms. Rathwell that the fact that the bill does not specify the uses may create problems. It may occur, as in the example that I mentioned, that some information is gathered for other purposes and that it comes to the attention of a journalist who is interested in further examining the matter. Could the journalist use this information since it was not initially collected for journalistic purposes? Do you see the problem? I believe that the current wording may cause problems because all sorts of organizations gather all sorts of information and, as you know, journalists look here and there to find information. If the information has not been.... Yes, you know what I mean.

Ms. Francine Lalonde: Journalists do not always check. Sometimes, they do not even contact the people concerned and then they nevertheless broadcast the information.

Ms. Edith Cody-Rice: It may happen that a journalist comes across a very important story, for example, the fraud issue that I mentioned, and that he will not be able to reveal the information he has because the person who originally collected it did not do so for journalistic use. This could really pose problems.

For this reason, I would prefer that it be a little broader. Your question had a second component didn't it?

Ms. Francine Lalonde: Yes, but I would first like to hear the other side.

• 0940

Ms. Sylvie Courtemanche: That is it. We have to make sure that the legislation exempts subsequent use of information for journalistic purposes when the original collection of information was not carried out specifically to gather information for this use. We are not seeking to extend this exemption to purposes other than journalistic ones, but we would like to be assured that ultimately, when use is made for journalistic purposes, that this be exempt.

Ms. Francine Lalonde: You two other recommendations aim to eliminate the confusion in the present bill. Your second recommendation specifies:

To insure that the words "every organization", read in the context of the journalistic exemption, section 5(1) should more accurately read:

Subject to section 4(2) and sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

Would you like to clarify your clarification?

[English]

Ms. Cynthia Rathwell: Certainly. Our primary concerns, as we expressed them in issue 2 and issue 3 in the appendix, are simply that we believe that because this bill starts by introducing a broad journalistic exemption, it is necessary for clarity's sake to retain the purity of that exemption.

In a case where exempted parties are repeated or in cases where limitations to exemptions of other parties are noted, it has to be made clear that the journalistic exemption itself is exempted from any minimizing conditions that happen later in the bill with respect to other kinds of uses. Similarly, if there are certain exceptions specifically noted later in the bill, the journalistic exemption should be repeated among those exceptions. Otherwise, one is left with a broad exemption at the beginning and then it's unclear, because it seems to be limited here later, whereas it seems to be expanded there.

The sanctity of a broad exemption at the beginning is our simple point, and these are just two areas where we've noted that it disturbed the clarity of the initial broad exemption by saying that in one case certain things are permitted with respect to these uses and in another certain things aren't permitted. If journalism is noted in one place and not in another, it creates confusion. It's best just to leave it as a broad exemption at the beginning.

Sorry, but it's sort of difficult to explain, other than just reading this, how—

[Translation]

Ms. Francine Lalonde: Basically, you want to ensure that there be a broad exemption for journalistic use for public information. Ms. Cody-Rice, you also said that you found the Quebec libel legislation intelligent, because it required a different treatment for the exemption in the case of abusive use of information. Is that correct?

Ms. Edith Cody-Rice: That is not quite correct. I gave you an example saying that the Quebec libel legislation provides for an exemption when the public interest, and only the public interest is involved. If a journalist is unable to defend the authenticity of his information and states that he broadcasted it in the public interest, and if there has been an error, he is not completely.... The common law specifies that if a journalist has done everything that he could to verify his information, and if he broadcasts even a single bit of incorrect information, he is responsible for all the resulting damages, even if it is not his fault. This is really quite severe.

• 0945

Under the Quebec legislation, it is not enough that the information be correct; it has to be in the public interest. If you have broadcasted information in the public interest and it is true, you have a defence.

When I say that the Quebec legislation is very intelligent, it is primarily because it provides this exemption that takes the public interest into account. We could incorporate some of its provisions in the Privacy Act. You have to agree that the libel legislation already exerts significant control. I know that some people believe that you can broadcast anything, but the libel legislation is very strict. When we recognize that we have made an error, we immediately apologize. We do not claim to be right and wait to be sued. This is not how it works. The Canadian libel legislation is already very strict.

The Chairman: Thank you very much.

[English]

I thank you, Madame Lalonde. I have to move on.

Mr. Keyes, please.

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

First, I think it's very important that we acknowledge today that our clerk, Elizabeth, is celebrating her birthday.

Some hon. members: Oh, oh.

Mr. Stan Keyes: Ms. Rathwell, I heard you state “clarity in the broad exemption”. Boy, it's almost an oxymoron. I wonder if you could explain that for me.

Ms. Cynthia Rathwell: The exemption in paragraph 4(2)(c) is fairly good as it is. The only contention we have with the way it's drafted is with respect to, as we've discussed with Ms. Cody-Rice, the need to clarify that sources who convey information to journalists are also not held liable in connection with the ultimate journalistic use of the information.

Mr. Stan Keyes: You don't think they should be?

Ms. Cynthia Rathwell: Frankly, no. I believe that they should be liable with respect to the use of the information out of the context of a journalistic purpose, but—

Mr. Stan Keyes: Oh. All right.

Let's take the next logical step. If you direct your attention to clause 3 in part 1, you see:

The purpose of this Part is to provide Canadians with a right of privacy with respect to their personal information that is collected, used or disposed by an organization in an era in which technology increasingly facilitates the collection and free flow of information.

Do you believe in grey areas, Cynthia?

Ms. Cynthia Rathwell: I think most people do believe in grey areas.

Mr. Stan Keyes: Yes. You see, I think I would defend paragraph 4(2)(c) in its present state because I too believe in grey areas.

When I read your recommendation 1 for paragraph 4(2)(c)—“any organization in respect of personal information”, etc., my concern is that such literary and accurate giants in the industry as Frank magazine or other supermarket tabloids might be able to take your definition—and never mind the fact that they've put out these periodicals and how they mask themselves as journalistic giants or purveyors of important information—and one day, as soon as they find a way to charge for their service, they too will be on the Internet.

Once that happens, how are we going to accomplish clause 3—protecting the right of privacy of Canadians—if we don't ensure that we're not just talking about any organization but also about employees of any organization?

Ms. Cynthia Rathwell: If I may respond, I think the problems of.... I'm not sure if you want to address Frank magazine or if the question really comes down to whether there should be a clear definition of journalism or journalistic purposes within the act.

Mr. Stan Keyes: You and I both know that we could talk for ten years and not accomplish that goal.

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Ms. Cynthia Rathwell: But more broadly, I think yellow journalism has always been a problem—if we're going to call Frank magazine “journalism” or concede that it could fall within that definition.

With respect to what one might refer to as rogue users of the Internet, who put up information and say they are journalists and therefore they can say anything they want no matter how invasive it may be, there are a few factors to consider.

The first factor is the existing laws of defamation and libel and those on hate literature, which is both criminal and civil law. Second, there are areas under the bill that such an individual could rely on, other than the journalistic exemption, to justify his exemption from the act. In particular, I think, look at paragraph 4(2)(b), where “any individual” who collects personal information and “uses or discloses it for personal or domestic purposes” would be exempted from the act as well. Provided that they weren't charging for their web site, the same sort of activity would be legal under Bill C-54, notwithstanding the existence of the journalistic exemption; it would be the personal information exemption. Similarly—

Mr. Stan Keyes: That's why I asked you if you believe in grey areas. Under your recommendation number one, where you state,

any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes, you couldn't create a larger grey area than that statement.

Frank magazine can hide behind the word “artistic”. They can hide, barely, I guess, behind the word “journalistic”. If we're talking about an organization like that.... If all we were dealing with were reputable journalistic companies like the CBC, we wouldn't have a problem. Unfortunately, there's money to be made and people to hack up, all in a very polite way: collect personal information and then disseminate it under the mask of journalism, under the mask of being artistic.

For the average Joe at home, it's not a matter of.... As a lawyer, you can sit there and state that there are other areas in the law and in the code and everything else, but the person who's sitting at home is not going to have the wherewithal, the ability, to reach into his pocket, pull out $100,000 and go to court to fight some kind of a principle on which their personal information has been collected and re-disseminated by an organization like Frank—and have no recourse.

We have to find a way. I'm not saying that we have found it, but we have to find a way to ensure these individuals.... I'm not a lawyer, by the way, so I'm at a big disadvantage. Some people think it's a good thing I'm not and say, “Good for you, Stan.” There has to be a clearer, simpler way to protect the person at home from these so-called yellow journalists, as you call them.

Ms. Edith Cody-Rice: May I respond to that?

Mr. Stan Keyes: Yes, please.

Ms. Edith Cody-Rice: This is a law that has been brought forward given the incredible increase of communication ability and, therefore, the ability to circulate personal information. The problems you're addressing have always existed, and I don't think that one law can handle all the problems. There is a charter right of free speech, and it's to the benefit of us all, not just to the benefit of journalists—or people who who call themselves journalists—or artists. You are accepting a significant limitation on your free speech by passing this bill into law.

The question is, to what level should that limitation go? This means that you yourself cannot reveal personal information that has been collected for any other than journalistic, artistic or literary reasons.

This law entitles the person to complain to a commissioner, who can come in, review, write a report and then, in the end, perhaps entitle the person to a maximum of $20,000 for punitive damages and damages for humiliation. It's this, in concert with the defamation laws....

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Although one may say that people don't have the money to go to court, and I agree—I don't really have the money to go to court either—I think that applies to a systemic problem in our justice system: many of us do not have the money to go to court, including in criminal matters where we're charged with something. But you have to rely on the laws of the country, other than this law, to control the worst abuses of a system.

Frank magazine probably would fall under journalism, but there are defamation laws, and people have sued Frank magazine. You can get damages up to $1 million and that's a significant limitation on what people will say. People will take a chance. A lot of the information that's published in various kinds of magazines, although people don't want it published, is not defamatory. It tells things that they may not want told, but it's not defamatory. If it is defamatory, there is a mechanism under the law. It's a very strict mechanism.

The law of defamation is quite simple. I'll just give you the very—

Mr. Stan Keyes: But we're not just dealing with the law of defamation. We're dealing here with what you just said.

Ms. Edith Cody-Rice: What's that?

Mr. Stan Keyes: People having things told about them that they don't want told.

Ms. Edith Cody-Rice: First of all, that's true that may happen, but in a democracy how much of a limit do you want to place on freedom of speech?

Mr. Stan Keyes: I would say the same limit, Madam Chair, through you to the witness, as the fact that we do not allow people to yell “fire!” in a crowded movie theatre.

Ms. Edith Cody-Rice: No, that's different, though. You don't allow people to yell “fire!” in a crowded movie theatre. Should they yell “fire!” if there's a fire or should they inform people that there's a fire if there is a fire?

Mr. Stan Keyes: If there's no fire and they yell “fire!”?

Ms. Edith Cody-Rice: That's defamation.

Mr. Stan Keyes: Defamation? No, it's not defamation.

Ms. Edith Cody-Rice: If you transpose it, it becomes that: “this person has done something wrong”, but he has not done something wrong. That's defamation.

Mr. Stan Keyes: No, you see, I'm going beyond that. I'll close with this statement. I'm trying to go beyond the defamation and trying to say that just the release of that personal information, which may be totally true, with nothing defamatory about it.... Let's say that I don't want Frank magazine to advertise the fact that Joe Black is gay. That has nothing to do with the story, but Joe Black is protecting himself from whatever by not releasing the fact that he's gay. The article says he's gay. That's not defamatory, but it's a release of private information in a public forum through yellow journalism or what have you, private information that he didn't want released.

Ms. Edith Cody-Rice: Just a minute, though: where did they get that information? The source does not have the right to release the information unless the source is the person himself. Under this bill, no source would have a right to release that information.

Mr. Stan Keyes: Oh, I would disagree.

The Chair: Thank you, Mr. Keyes.

Mr. Jaffer, do you have more questions?

Mr. Rahim Jaffer: I have one quick question.

Mrs. Rathwell, you mentioned Lorne Greene in the human dignity complaint.

Ms. Cynthia Rathwell: Oh, oh. Yes. I should have said Lowell Green. Pardon me.

Mr. Rahim Jaffer: Oh, Lowell Green...okay. My question is simply this: how many privacy complaints would the CAB and/or the Canadian Broadcast Standards Council receive in a year? In other words, how big is the privacy problem right now, in your opinion?

Ms. Cynthia Rathwell: I don't have an exact quantification, but I know from reviewing decisions on an ongoing basis that privacy complaints usually occur maybe two or three times a year in a context that actually becomes adjudicated, that is not settled by a broadcaster and the complainant. The first step in the CBSC's process—that's the broadcast standards council—is to try to facilitate a resolution between the parties. Then it moves to adjudication.

It's a fairly limited number. I would say that the clause of our code of ethics that most often is adjudicated is that concerning human dignity and respect for an individual and not preventing sexism, racism, discrimination against sexual orientation and that sort of thing. That's what would more commonly arise as a programming complaint. A privacy complaint is quite rare.

I'd just like to mention one recent decision that I read, which concerned the Toronto subway murder that occurred about a year and a half ago. It was a privacy-based complaint because a television station on the west coast had bought a feed that showed the victim once after she was recovered from the track she had been pushed onto but before she died. They received a number of complaints about that. It was found against them that they had committed a breach of privacy that was quite serious.

• 1000

As a result, they had to announce that during prime time. That affects the credibility of the broadcaster's news services. So just responding to your concern more obliquely, and to the Bernardo tapes issue, I think that broadcasters are generally sensitive to what the public is willing to put up with in terms of privacy breaches. To me, that was a very good example of the system working. It's just one that I happened to note. I don't have a quantification overall.

The Chair: Thanks very much, Mr. Jaffer.

Ms. Jennings, do you have any questions?

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you.

I'm not going to address the issues that you've raised in your presentations. I'm going to ask you a question. If you're not prepared to answer it right now, I would appreciate a reflection and a written submission or answer.

It concerns providing protection within the legislation for someone who is an employee within an organization—if this legislation comes through with or without amendments—and who files a complaint with the commissioner in the belief that the employer that he or she works for has violated the legislation. Is there protection within the legislation against acts of reprisal by that employer against the employee, on the condition that the commissioner has not found the complaint to be futile, frivolous, vexatious or made in bad faith?

The Chair: Ms. Cody-Rice.

Ms. Edith Cody-Rice: Are you asking if there should be something in the bill?

Ms. Marlene Jennings: Yes.

Ms. Edith Cody-Rice: That's an interesting question. Possibly.

Let's say that an employer tries to take a reprisal on an employee, like dismissal, for example, and it is brought forward that a complaint was made. Just from my experience doing employment law, I would say that the employer would have a somewhat difficult time defending himself before the labour board. There are a number of options—

Ms. Marlene Jennings: You are a lawyer so you do know, as I do, that generally speaking, say, when an individual brings a complaint of harassment concerning a supervisor or a fellow worker and is dismissed or subsequently disciplined, the grounds given are not directly tied to that complaint.

Ms. Edith Cody-Rice: I agree with what you're saying. Also, there can be great difficulty in getting a job somewhere else once it becomes known that the individual has made a complaint.

Ms. Marlene Jennings: Exactly.

Ms. Edith Cody-Rice: I'm not sure that this is the legislation to deal with it. For example, if I were dismissed from my job and had made a complaint, I certainly would bring that up before the labour board in my complaint for dismissal. The labour board, in my experience, has tended to look rather favourably on it. The board will certainly look at other reasons. As you probably know, dismissal for cause is extremely difficult, so that if you're dismissing someone you're dismissing them without cause. They can either go to the labour board for very little money and maybe get reinstated, or they can sue and get some money, but that costs a lot more money.

I think that they would look favourably.... It's very hard to control that, but if someone is dismissed, that would certainly be taken into account. That is my experience. I certainly don't represent the labour board. Whether it should be dealt with in this legislation or under normal employment law is a good question.

Ms. Marlene Jennings: But you are aware of a move in other jurisdictions to actually adopt specific whistle-blower legislation.

Ms. Edith Cody-Rice: I think the human rights legislation has that in it.

Ms. Marlene Jennings: That's precisely because the regular labour solutions have not been found adequate.

Ms. Edith Cody-Rice: I don't know all of the reasons. I know human rights legislation certainly has it; you can't punish a person for making a complaint. I don't think that we, as the CBC, would object to there being something in the legislation that would affect our corporation.

Ms. Marlene Jennings: Thank you.

Ms. Rathwell.

Ms. Cynthia Rathwell: We have been considering that issue. We'll have to get back to you in writing.

Ms. Marlene Jennings: Thank you.

[Translation]

The Chairman: Thank you, Ms. Jennings.

Ms. Lalonde, do you have any other questions?

• 1005

Ms. Francine Lalonde: I would like to leave your briefs now to remind you that the first position of the Bloc Québécois and the Government of Quebec was that the federal legislation should have taken Quebec's Bill 68, which you are no doubt familiar with, as its basis. They believe that having two sets of rules and remedies will create a great deal of confusion for businesses and the public. For example, Bill 68 provides that the citizens will have free access to a decision, in a much shorter process, whereas the remedy set out in the federal bill is long, and finally, the only outcome will be a recommendation by the Commissioner. If the citizen wants to continue, he will have to initiate proceedings before the Federal Court.

Don't you think that ill will be difficult for businesses and citizens to deal with—this was not Quebec's intention—two sets of rules and two sets of remedies?

Ms. Edith Cody-Rice: I'm not sure that this coexistence poses so many problems. First, I would like to address the fact that there are two legislative bases. I studied civil law in Quebec, and I know that it is the basis for a society that has certain principles that are somewhat different, and are more clearly defined. The Civil Code is certainly more detailed that the common law. I believe that Quebeckers are ready to accept some things. The rest of the country faces the same constraints, but it may be that on quite specific points, we don't accept exactly the same things because the context is different.

The Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms function side by side, although they are somewhat different. I don't know if Quebeckers have difficulties because there are two charters. I do not believe that the Canadian Charter grew out of the Quebec Charter. So, I do not believe that there is necessarily a problem. But, finally, that depends on your point of view. I do not live in Quebec.

Ms. Francine Lalonde: That brings to mind a sad memory. In fact, it makes a great difference to citizens. You represent organizations that are also employers.

Ms. Edith Cody-Rice: Yes.

Ms. Francine Lalonde: You know, for example, that there is a pending case, and we are eager to see the results. I don't know how far it will go. If it goes as far as the Supreme Court, that will take time. As you know, an employee of Air Canada asked the Information Access Commission to give him access to his file which is in Toronto, and Air Canada refused. The Information Access Commission had ruled in the employee's favour, and the case is presently in appeal. This issue is very relevant, because in one case, it is specified that the employee is entitled to his file, whereas, in the federal bill, this is not obvious.

A citizen who filed a complaint in one case would be quickly entitled to a remedy, whereas the federal bill provides a remedy that might take so long that it might dissuade citizens from seeking corrective action.

Ms. Edith Cody-Rice: Nevertheless, it is worth noting that, generally, employees who take their cases before a human rights tribunal are not much discouraged by the prospect of lengthy procedures.

Ms. Francine Lalonde: But you yourself said that people don't have money.

Ms. Edith Cody-Rice: Generally, it does not take money to file a case before such tribunals.

Ms. Francine Lalonde: I thought that you were talking about the court. I agree that there is no cost to filing a complaint before the Information Access Commission.

Ms. Edith Cody-Rice: There are many laws like that. it might be preferable to include some provisions in the federal Act to satisfy you. But there is also the Labour Code. An undertaking under provincial jurisdiction is subject to the provincial labour legislation. A CBC employee is subject to the federal labour legislation. There are many cases like that.

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Ms. Francine Lalonde: But you know the story—

The Chair: [Editor's note: Inaudible]

Ms. Francine Lalonde: With your permission, I would like to make a comment. I worked in this field for a long time. Had it not been for the Privy Council in London, labour relations would be totally within federal jurisdiction. The separation occurred after lengthy procedures.

Ms. Edith Cody-Rice: But that applies to all of the provinces.

Ms. Francine Lalonde: My point is that what was done for labour relations cannot be applied in the field of civil law. This is what we claim.

[English]

The Chair: Thank you.

Is there a comment, Ms. Rathwell?

[Translation]

Ms. Cynthia Rathwell: I merely wanted to clarify that we are representing an association of federally-regulated undertakings, and we have not examined the Quebec legislation. Thank you.

[English]

The Chair: Thank you.

Mr. Lastewka, do you have more questions?

Mr. Walt Lastewka: Thank you, Madam Chair. I'd like to take our discussion to another level, to the level of going forward.

Both of you have talked about the importance of freedom of expression and what's written in the charter. Both of you have talked about public good and fairness. If there was ever a bill that touched every Canadian in this country, the privacy of Canadians, it's this one. It's been very clear to us and to a number of witnesses who have brought this forward that Canadians don't understand privacy and haven't had enough information on what privacy is and on what they should be saying and not saying. It was the CBC, I think, that said in one item that confusion is something that we don't want to have—

Ms. Edith Cody-Rice: In the law.

Mr. Walt Lastewka: —in the law as we go forward in informing Canadians.

I'd like to know if there has been any discussion, whether it has been in the CBC or in the broadcast group, on working with the commissioner, on maybe working together with the newspaper association and the various groups that have media ability to inform Canadians, in order to avoid confusion and to explain exactly what's in the bill in regard to the privacy of Canadians.

Ms. Cynthia Rathwell: Private broadcasters, every year, donate millions of dollars to PSA campaigns and public service announcements, which, as a matter of practice and policy, have always been allocated to charitable local causes. The CAB doesn't have any input into how its individual members choose to use their public service announcement time or what campaigns they should support.

However, what the CAB can assist with is promoting the need for public education among the members. We have a number of communication mechanisms with our members, including newsletters, a communications committee and the like. Certainly we will be happy to disseminate the information on the bill to our members.

I would say, just on a personal level, that it's foreseeable that this is a newsworthy item, because e-commerce and the Internet and all of these issues of privacy are something that they may very well be interested in covering. The CAB is happy to provide them with the information and to help them understand the legislation to the extent that they're interested in facilitating that kind of coverage. In terms of guaranteeing air time or anything like that, it's simply beyond the mandate of the CAB to do that.

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We agree with you that it's very important. I think our members inherently understand that privacy is not only an important public issue but is something that members of the public themselves are interested in, as you mentioned.

Mr. Walt Lastewka: Many times the broadcasters, the media, the CBC, talk about government leadership. I'm reversing that. I'm looking for leadership from those associations in working together not to have confusion. As Ms. Cody-Rice mentioned, the last thing we want is confusion. Isn't there now a leadership item amongst all the various groups to make sure we get this right so that there isn't a lot of money, time and effort spent on explaining that no, it's not that, it's something else?

Ms. Cynthia Rathwell: As I was trying to say, I think we make an effort at the association level to lead our members with an understanding of all new legislation. That's at the level of informing them of new laws and policies. We also have a public affairs and internal communications department for members, which can help them in consistently expressing the content of the bill as they go forward with news and information coverage on it, which I'm sure they will.

Ms. Edith Cody-Rice: When I talked of confusion, I was talking about the bill, so that when it starts being interpreted by judges and lawyers who are making their cases, they're not going to say something absolutely opposite to what you intended, for example, that broadcasters aren't covered because federal undertakings aren't in a definition—so that they're not going to say something that was totally unintended in the bill.

What the Canadian public will need to know—and I have no doubt there will be news stories on it when this comes forward because privacy is a very important issue now to most Canadians—is that they have a right to see their own records and a right that information not be collected about them without their consent. Those are the two important aspects of the bill.

When they actually make a complaint—I think anyone is entitled to make a complaint—it's true that they may then find out that there's a journalistic exemption, for example. But I think that for many Canadians, for most Canadians, all 30 million of us, it'll be much more important that institutions like banks, telephone companies and various other institutions that affect your credit rating, for example, cannot go out and collect information about you that you don't consent to have collected. If they know that one basic thing, they're in a position to make a complaint, and they should be informed about to whom they can make the complaint. In fact, if they contact their MP if they have a complaint, I'm sure their MP will tell them right away that they can complain to the Privacy Commissioner. I think those are the essentials Canadians need to know.

Out of all of us, there are very few Canadians who will ever be involved in a story on the news or who will have a book written about them or who will be the subject of a painting. Those people may find that there's a journalistic exemption if they don't like what has been said, but I think what's most important for most Canadians is a different focus. You only need to tell them those three or four elements and they can take it into their own hands.

Mr. Walt Lastewka: Thank you.

The Chair: Thanks very much, Mr. Lastewka. I just have one brief question. Basically it's in line with my questioning from yesterday. Do you believe the audit provisions in the bill apply to you?

Ms. Edith Cody-Rice: To...?

The Chair: To broadcasters, to journalists.

Ms. Edith Cody-Rice: I think they do in fact apply. That's certainly the intention of the bill. I'm just saying that the bill, once it becomes law, is going to be law for 35 years. At the end of 35 years, you want it still to be interpreted in the same way it was when you made it into law. Yes, I do believe that.

The Chair: I'm sorry. Maybe I'm not making myself clear. Under part 1, in clause 4, you have an exemption.

Ms. Edith Cody-Rice: Yes.

The Chair: This part does not apply. The audit provisions are still under part 1. Provided you're within your exemption, the audit provisions don't apply to you.

Ms. Edith Cody-Rice: I agree.

The Chair: That was my question yesterday to Mr. Mackenzie. I was rather surprised by his answer. I guess he was maybe assuming that we were going to change the exemption, or if we were changing the exemption, he found those sections to be offensive.

• 1020

Ms. Edith Cody-Rice: Oh, I see.

The Chair: Yet as they stand, I really didn't understand where the Canadian Newspaper Association was coming from, because the way I read the bill, provided you're within your exemption, the audit provisions don't apply to you.

Ms. Edith Cody-Rice: I agree, but a broadcaster does much more than just the newsroom. We have employees, and employees will have the right of access, under this bill, to their records. Newspapers have subscribers, and subscribers would have a right to that information. But I do not think that these provisions apply with the exemption to “the newsroom” or to many of the production facilities.

The Chair: Right. I think my question yesterday was just misunderstood.

Ms. Edith Cody-Rice: Speaking of grey areas, there can be a grey area there, because you hire all sorts of people to do all sorts of programs and so on and so forth. The distinction between administration and programming is not as clear as it would appear at first, and I think we're going to find it's even less clear as we go along. We'll just have to live with it and adjust to this act, as everybody else in the country will.

The Chair: Ms. Rathwell, do you have any comments?

Ms. Cynthia Rathwell: I agree with Ms. Cody-Rice that in terms of the application of the exemption, audit and search and seizure don't apply, but with respect to other commercial uses of information, it does. I too was a bit confused yesterday. I thought that at the end of the day what Mr. Mackenzie was saying was that if we move to a situation where search and seizure or audit is permitted in a journalistic context, then we'll have a problem.

The Chair: When I asked the question, I was expecting him to come back and say that it didn't apply. Maybe I misunderstood.

Ms. Edith Cody-Rice: It did apply in one respect, and that is, the question will become, was this really for journalistic, artistic or creative purposes? If you collect news and then turn around and sell that news to someone for a mailing list, your newsroom is not exempt any more.

The Chair: Right. But that would be violating part 1 to begin with if you go outside of your exemption as an organization.

Ms. Edith Cody-Rice: You're not within the exemption if you do that.

The Chair: Then you know what the law is. If you're going to abide by the law, you're not going to have any problems. That's the way I read the bill. Maybe that's a very simplistic way of stating it, but I do think that laws are there for a reason. Hopefully, people will abide by them.

I want to thank you all for being with us this morning. We appreciate your input into Bill C-54. If you have any comments or some follow-up questions, we'd appreciate receiving them as soon as possible. Also, as proposed amendments are available, the clerk is distributing them, and if you have any comments on them, we'd appreciate those as well.

The meeting is adjourned. We'll be going into the steering committee meeting in about five minutes.