STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 17, 1999

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): I call the meeting to order, 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.

We're very pleased to have with us this afternoon witnesses from the Canadian Bar Association. They are Mr. Barry Gorlick, president; Laird Hunter, chair, information technology and law reform steering committee; and Mairi MacDonald, member, information technology and law reform steering committee.

We're very pleased to have you here. We'll allow you do to your opening statement, and then I'm sure we'll have many questions for you.

[Translation]

Mr. Barry Gorlick (President, Canadian Bar Association): Thank you very much, Madam Chair.

On behalf of the Canadian Bar Association, we are delighted to be able to appear before the committee today to talk about Bill C- 54.

The Canadian Bar Association is a national organization representing more than 35,000 members throughout Canada. The primary objectives of the Association are to improve the law, the administration of justice and access to justice. It is with these objectives in mind that we examined this important bill and prepared today's presentation on this issue.

[English]

I say “important legislation” on purpose. In our view, legal rules to better protect individuals' privacy and to facilitate electronic commerce are long overdue. The Canadian Bar Association strongly supports the objectives of the legislation before you.

That said, Bill C-54 as it currently stands is flawed. It suffers from a lack of clarity that may well undermine its effectiveness and its acceptance by the regulated communities. The structure of the bill is unusual in Canadian law and, in our view, not entirely successful. These flaws must be corrected if the government is to achieve its objective of a balance between individual rights to privacy and business interests and electronic commerce. Legislation of this sort must provide both clarity and assurance of fair treatment to both individuals and organizations.

[Translation]

We learned that representatives from Industry Canada have already submitted several amendments that they would like to see made to this bill. We have had an opportunity to take a look at these amendments and they appear to meet most of our concerns. Accordingly, we would strongly encourage you to adopt these amendments in the report you will be presenting to the House of Commons.

[English]

As president of the Canadian Bar Association, I'm expected to know a little bit about many things. As president, I have the privilege of calling upon members of our association who have particular expertise.

[Translation]

Today I am accompanied by Laird Hunter, from Edmonton, and Mairi MacDonald, from Toronto, who are both members of a committee of eminent legal specialists responsible for analyzing Bill C-54. I will, therefore, turn the floor over to them so that they can explain to you, in detail, the findings of our analysis.

Mr. Hunter will say a few words.

[English]

Mr. W. Laird Hunter (Chair, Information Technology and Law Reform Steering Committee, Canadian Bar Association): Thank you, Mr. President.

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I just wanted to pick up briefly on some remarks that Mr. Gorlick made and say to you that we've had the considerable pleasure of working with officials from the industry and justice departments in reviewing the various pieces of this bill, and it's been very helpful to us in preparing our brief to you.

Some of the remarks that we'll make today in effect deviate in some small way from our presentation because it was very much a work in progress. We had particular opportunity to review, as we've mentioned in the brief, under dispensation, the evidentiary provisions, so many of the matters that we raised in discussion have been already incorporated with respect to parts 2 through 5.

I'll now turn my remarks to some of the constitutional matters. My colleague Mairi MacDonald will look at the structure and the procedural issues.

As we've said in our brief, there is a range of opinion amongst jurists in Canada as to the division-of-powers issue that is presented by this bill. In the result, we're not able to make definitive statements as to the success or otherwise of the government's initiative in the exercise of its powers under this bill.

What we can say, though, is that the range of opinions represented in the various constitutional positions that can be taken about this bill are all with substantial constitutional foundation. They range, on the one hand, from a position that says the federal government is with very limited power to incur and intrude, to a more substantive position that says the federal government is entitled under the exercise of its trade and commerce power to respond to the need to regulate data protection in the context of commerce in the way that we believe is represented in this bill.

My comments are simply that our membership and the members we represent occupy the entire spectrum. We have analysed the bill from the perspective that there is a legitimate foundation to the exercise of a trade and commerce power to advance the framework, recourse and remedies presented in the bill, and that the methods by which the bill chooses to advance the relationship of the trade and commerce power federally and the property and civil rights power in respect of the raising of similar legislation at the provincial level is a sound principle in law. Whether it would stand the test of a court consideration, we can't say.

With those very preliminary remarks on the constitutional matter, I'll turn it over to my colleague Mairi MacDonald, who will give you some observations on our concerns about structure and procedure. Then we'll be very pleased to take questions.

Ms. Mairi S. MacDonald (Member, Information Technology and Law Reform Steering Committee, Canadian Bar Association): Thank you.

As Mr. Hunter said, in reviewing this bill we come up with three general types of concerns about it. One of them, of course, was the constitutional issue that Laird has just talked about.

The second was the structure of the bill, which has given us some grief. Quite frankly, the grief has been mostly because it was difficult for us to understand what was going on. The fact that a bunch of lawyers is having difficulties understanding this bill is certainly not something that's going to raise a great deal of sympathy out there in the world, but I think it should be a concern, because one of the government's stated objectives with this legislation is public education.

I'm not going to spend too much time talking about our issues with the structure. I understand that you've heard a lot about this for the last several months, and I don't want to waste your time going over that again. All this is to say that obviously there are some good reasons for it being the way it is. Some of those are addressed in our brief. Some of them are embedded in the constitutional issues that Laird has alluded to, but it is difficult.

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One the results of the difficulties in interpreting exactly what an organization's obligations might be under this legislation or what an individual's rights might be under this legislation is that a great deal of weight rests on the shoulders of the privacy commissioner. Therefore, the privacy commissioner needs to be adequately instructed and educated and also adequately funded in order to carry out his mandate if the legislation is going to have any substance in the event that it's passed.

On the structural issues, our first problem is that at the simplest level the need to read back and forth between the legislation itself and the schedule creates certain difficulties of interpretation and, we believe, certain ambiguities. A second set of problems arises because the government's intentions are unclear about some of the standards language. This is the mandatory language, the “shalls” versus the recommendations, the “musts” issue, which I know you've heard a lot about.

We proposed a couple of alternatives to the structure. The first one would be to write the mandatory provisions into the law itself and place the non-mandatory provisions, which are the “shoulds” and the interpretative guidelines that are part of the standard, in a separate schedule to the bill, so that the standard of conduct with respect to the obligations, then, would be reasonableness in light of the circumstances, such as sensitivity of information, which are addressed in the parts of the schedule that are a bit more discursive than the straight-up obligations.

A second alternative would be to state the principles in the legislation and then make compliance with the standard of prima facie defence to a complaint to the privacy commissioner or to a court with respect to an alleged breach of this legislation.

That was as far as we took it in terms of alternatives. I'm not sure that either of them are necessarily going to be terribly helpful to you. To figure out exactly how this bill should be written in view of the complicated subject matter it deals with and the complicated constitutional situation in which we find ourselves, obviously you'd have to sit down and try to rewrite it, and alas, we haven't been able to do that.

On procedural issues, our overwhelming concern is to make sure the bill strikes an appropriate balance between the need for an expert in privacy matters, that is to say the privacy commissioner, to conduct an investigation on behalf of individuals and the need of organizations to conduct their affairs without undue government interference.

For the first part of this equation, it's critical that the privacy commissioner not be unduly limited by a lack of resources. I've mentioned that before, and I know that a number of others, including the privacy commissioner himself, have mentioned that to you.

Ensuring the appropriate balance between the rights of individuals and organizations of course also requires due adherence to the legal principles of procedural fairness. We have some suggestions for how the bill could be improved in that respect.

Our first suggestion is that well-defined timelines are one way of improving the procedural fairness actually included in the bill. One of the amendments that we understand Industry Canada has made available to you and has made available to us would provide the commissioner with a period of one year in which to make a report on a complaint. In our brief, we suggested six months. We're still of the view that one year may be a bit excessive, but we are pleased to see that the minister is interested in considering setting some timelines on that report period.

Another issue is the question—and this is perhaps a more fundamental issue—of whether rights of appeal exist to the courts from decisions and reports of the commissioner. In our review of this legislation, it's not clear whether an organization investigated by the privacy commissioner can seek judicial review of his findings.

It's also not clear exactly how interpretive questions that arise are going to be dealt with. A lot of them obviously are going to go to the privacy commissioner. This once again reinforces the importance of the mandate that he is being given by this legislation.

But those questions will concern not just the language of the legislation, but also perhaps more fundamental issues like the charter right of freedom of expression that is invoked by the exception of journalistic and artistic purposes. Another example is the fundamental question of the application of the legislation, which can be invoked by an issue as simple as whether an activity truly qualifies as commerce.

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Those sorts of issues are going to have to be dealt with by the privacy commissioner, at least at first instance. His ability to deal with those questions, as well as the other issues that are raised by the wording of the legislation, is something that has given us some concern.

I think I'll stop there. We'd be happy to take any questions you may have, including on the amendments that were proposed by Industry Canada. Thank you.

The Chair: Thank you very much. I'm going to start with questions.

Mr. Lowther.

Mr. Eric Lowther (Calgary Centre, Ref.): Thank you, Madam Chair. I have to confess I haven't had time to study your brief, so my questions might not be as specific as I might otherwise have—

The Chair: Mr. Lowther, we just received it, so—

Mr. Eric Lowther: That's fair enough. Great. Well, we're all in the same boat then, aren't we?

Mr. Janko Peric (Cambridge, Lib.): No, we're not.

Mr. Eric Lowther: You're speed readers, right?

My first question is this. You talked about some of your concerns in the area. I'm looking in the document here and it talks about personal information being overly inclusive. It talks about the word “use” being overly inclusive. It talks about the definition around commercial activity.

Is your underlying theme here that the bill needs more definition? Are these terms, to use your words, too overly inclusive to be effective? Does it make it too open to subjective determination, as opposed to a definitive “this is” or “this isn't”?

Mr. Laird Hunter: By way of preface on a couple of those specific points, we provided to the clerk a comparison, which I think is available—as I said at the outset, our brief is a work in progress.

Commercial activity has now been defined. “Use” has been removed. The question still obtains, though, which my colleague Ms. MacDonald raised, about the kind of definition the commercial activity definition in the amendments is. It simply says that commercial activity is activity that is considered to be commercial activity. It's taken from the state immunity legislation. It isn't a nominative definition. It's a definition that requires a judgment.

The question then becomes how that judgment is made, who makes it, and whether that judgment itself is capable of oversight. As lawyers concerned with procedure, it was in that realm that our concerns arose.

Mr. Eric Lowther: Right. One comment you made that I picked up, Ms. MacDonald, is something along the lines that if you had done a more in-depth study on this or something, you might have...you didn't have time to try to rewrite it. At a high level, is this in need of rewriting?

Ms. Mairi MacDonald: Actually, I think what I said was that the only way to fully understand the challenges the drafters and the officials went through in trying to craft something like this would be to rewrite it.

Mr. Eric Lowther: I see. Okay.

Ms. Mairi MacDonald: That's not an undertaking we took.

Mr. Eric Lowther: Basically, to start from square zero.

Ms. Mairi MacDonald: Yes, exactly. We understand and recognize there's been a great deal of effort put into it. Frankly, if the choice were sending it back for a complete rewrite and not passing something—taking the risk that nothing gets passed—as an organization, we've taken the position that it's not a chance we would suggest you recommend.

Mr. Eric Lowther: I see.

Mr. Barry Gorlick: Just to supplement that, I wittingly used the terms in my opening remarks, “flawed”, not “fundamentally flawed”. There's a material distinction in those choices of words.

Mr. Eric Lowther: Good. I think that's good.

The Chair: Thank you, Mr. Lowther.

Ms. Jennings.

[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Thank you very much. I also appreciate the comment that you just made; namely, even if there are problems, they are not fundamental ones.

I would like to deal with two issues. On the last line of the second page of your additional documentation, you talk about the possibility of compensating an organization that has had a frivolous complaint filed against it, or one that was made in bad faith.

Do you think that we would be improving this bill by adding whistle-blower protection?

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We don't have an equivalent term for whistle-blower protection in French, but I believe you understand what I'm talking about. This would be a provision to protect an employee who has blown the whistle on an employer for alleged violations against this legislation when the Commissioner, following his investigation, does indeed determine that violations did take place. It's a matter or protecting this employee against any reprisals by the employer.

That will be possible, providing that what you have just said is well understood. We're talking about an employer or an organization that is the subject of a complaint deemed by the Commissioner to be trivial, frivolous or vexatious or made in bad faith under subsection 13(2)(d). The provision providing protection against reprisals should not in any way limit the employer's legitimate recourse against this employee or any other complainant.

[English]

Ms. Mairi MacDonald: It's not something we discussed—

[Translation]

Ms. Marlene Jennings: You have, needless to say, envisioned the possibility of an organization being the subject of a complaint that is trivial, frivolous or vexatious or made in bad faith and that such a complaint may harm an employer.

I would ask you to go a little bit further and to imagine the case of an employee who, by the nature of his work or status, truly believes that his employer is violating the law and the Commissioner, as a result of his investigation, determines that this is in fact the case. If you are not prepared to answer my question today, I would ask to give some thought to it and to submit a written response by Monday, with the agreement of our chair, of course.

Mr. Barry Gorlick: We will do so, Ms. Jennings, if this is possible, but only in English.

Ms. Marlene Jennings: Very well; I have no objection to the answer being in English.

Mr. Barry Gorlick: Thank you, Ms. Jennings.

[English]

The Chair: Mr. Hunter.

Mr. Laird Hunter: I'm thinking. There are two circumstances where the complaint could be made. There are two results. There's one where there is a report, and there's one where there isn't. My understanding of the operation of this bill—consistent with the B.C. and Quebec bills—is that there's no necessary disclosure of the complainant. So the situation would arise on voluntary disclosure by the complainant to his or her employer, or the interesting question would be whether the complainant was, in effect, identified by an employer in the course of investigations.

[Translation]

Ms. Marlene Jennings: Or identifiable by the very nature of the complaint.

[English]

Mr. Laird Hunter: Correct. Or by the nature of the complaint. I think all the confidentiality matters are covered by the bill. The question is whether the individual is identified by the employer, for example, and some kind of retribution results. And your question is whether or not there should be some shelter or protection for that situation.

Ms. Marlene Jennings: Specifically, in this legislation.

Mr. Laird Hunter: I understand. I think we have to think about that.

Ms. Marlene Jennings: Okay. Thank you.

[Translation]

I have a second question. Do you think that we would be improving the protection of personal information, in conjunction with interprovincial and international trade, if we were to include a clause stating specifically that this Act prevails over any other legislation that may be adopted by the Canadian Parliament—of course, this refers to legislation dealing with the protection of personal information—unless this other piece of legislation improves the protection of such information or includes a notwithstanding clause?

Perhaps you will have to think about this before giving me an answer.

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[English]

Mr. Laird Hunter: I always feel like a lawyer on this. Do I get to ask a question?

Are you saying it would improve this law to make privacy a constitutionally protected right?

[Translation]

Ms. Marlene Jennings: Without reopening the Constitution for the express purpose of putting...

[English]

Mr. Laird Hunter: Right, but a primary right.

[Translation]

Ms. Marlene Jennings: That's right. We could say that this Act, as far as protection of personal information is concerned, prevails over any previously adopted federal Act. There would, however, be two exceptions: in the case of a previously adopted piece of legislation containing a notwithstanding clause, which would signify that the clause had been debated in Parliament, and in the case where Parliament on majority, would have deemed, either in the House or in the Senate, that there were reasonable grounds for disregarding this Act or for believing that the protection afforded by the previously adopted legislation was even better.

[English]

Mr. Laird Hunter: I don't think we can give you our organization's position on it.

Ms. Marlene Jennings: So give me your personal one.

Mr. Laird Hunter: Personally, I would think setting aside that constitutional capacity and how one would arrive at that would make it a better bill.

Ms. Marlene Jennings: Thank you.

Ms. MacDonald.

Ms. Mairi MacDonald: I'm inclined to agree. To answer your first question about whether it would make it a stronger bill, I think it would certainly be an aid to interpretation both for individuals seeking to protect their rights and also for organizations trying to determine what kinds of resources they should really be according the implementation of this legislation. I think that's a question that is going to come to a lot of organizations' minds.

The Chair: Thank you.

Mr. Gorlick.

[Translation]

Mr. Barry Gorlick: Simply.

The Chair: Yes. That's great, thank you.

Ms. Marlene Jennings: I have no further questions.

The Chair: Mr. Dubé, please.

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): I had to read through this quickly as well. In your opening comments, when you talked about the constitutional aspect of the bill, you referred to a range of opinions. However, this brief was prepared by the Information Technology and Law Reform Steering Committee, and then validated by the Law Reform Directorate. I would like to know approximately how many people sit on these two committees.

[English]

Mr. Laird Hunter: The committee that I chair has six people. It received input from 12 to 14 committees, each of which has some 12 to 14 people. Those committees in turn dealt with their subsections at the local and regional levels, so this has therefore had an input right down to the bar association level across the country. It was circulated to all of the sections in the bar association. As we say in the preface, there was specific input sought from administration, alternate dispute, citizenship and immigration, civil litigation, etc. Each of those has some 10 to 12 people, and they in turn consulted with their subsections.

[Translation]

Mr. Antoine Dubé: Did this range of opinions exhaust, if I may use this word, the issue of territory? Could you tell me whether or not the opposing views came from your members from Quebec?

[English]

Mr. Laird Hunter: I don't—

[Translation]

Mr. Antoine Dubé: As far as the Constitution is concerned, specifically.

[English]

Mr. Laird Hunter: It came from all over, right across the country. There's a variety of opinion from lawyers as to the likely outcome of an exercise of trade and commerce power. It doesn't seem to me that it was necessarily from any particular quarter.

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[Translation]

Mr. Antoine Dubé: Did you consult the Barreau du Québec?

[English]

Mr. Laird Hunter: Not directly with the Barreau du Québec, just through a—

[Translation]

Mr. Barry Gorlick: We didn't consult the Barreau du Québec, however we did consult the Quebec Division of the Canadian Bar.

Mr. Antoine Dubé: When you did your analysis, did you consider Act 68, which has been enforced in Quebec for five years?

Ms. Mairi MacDonald: Yes, we did take a brief look at it.

Mr. Antoine Dubé: What do you think of this piece of legislation? Do you think that there will be any duplication when this bill is enforced?

Ms. Mairi MacDonald: You asked two questions and we have two answers for you.

Mr. Antoine Dubé: Good.

Ms. Mairi MacDonald: I will try to answer the first question and I believe that Mr. Hunter will try to answer the second.

As far as the quality of the Quebec legislation is concerned, I would say that we found it much easier to read and perhaps understand than the bill now under examination. However, it is important that we bear in mind the fact that the Quebec legislation implements a right that is already recognized in the Civil Code. Accordingly, the premises of this legislation are completely different.

For certain specific points, we could suggest that the committee turn to the Quebec legislation for solutions, however, for other issues, the basis is, obviously, different. Federal and provincial powers are different from each other. We do not think that you can simply transfer the terms of a piece of legislation from one jurisdiction to the other.

Mr. Antoine Dubé: I have a supplementary question that I would like to ask before I hear the answer to the second question. Do the Quebec Civil Code and the common law in the rest of Canada result in different enforcement?

Ms. Mairi MacDonald: Yes. I think that there are some fundamental differences, perhaps not in terms of the substance but rather, in terms of form. In the Civil Code, the right of an individual is expressed much more easily and clearly than it is in the common law. Also, the way that the civil law is interpreted is very different from the way that the common law is interpreted. Perhaps it is a greater challenge for common law experts to draft texts that can be explained clearly to all of their clients.

Mr. Antoine Dubé: And what about duplication?

[English]

Mr. Laird Hunter: As we read the bill and what we ascertain to be the underlying constitutional theory that will allow it to be put into operation, there should be no more or less duplication under this bill than there is under the exercise of any of the different powers that exist under our Constitution, similar to the trade practices legislation.

So as we understand this bill to operate, the federal government will exercise its trade and commerce power under what some have considered to be novel, but which our Supreme Court in recent years has given credence to in dealing with intraprovincial trade and commerce across the entire country, and will do so in such a way that if a province has exercised its authority under property and civil rights, such as in Quebec, under section 27 there will be an exemption. In fact, the federal government will be in effect saying, we will not exercise our trade and commerce power in your jurisdiction, and you will exercise your property and civil rights power.

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The bill, though, will operate with respect to federal works and undertakings in every province in Canada, just as, for example, the Canada Labour Code occupies that field with respect to federal works and undertakings. So in terms of duplication, there won't be duplication in the sense of two laws operating on the same subject matter with the same application. Instead, there will be one level of government operating under its proper role of authority, so the theory goes, and another level of government operating under its role and proper level of authority.

That's my understanding and how we read this bill. As I say, whether or not that will be sustained is a matter of some opinion among jurists.

The Chair: Thank you very much, John.

Mr. Lastewka.

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

First of all, I want to recognize your procedure in reviewing legislation. I've been advised of it before and I've admired the work that goes on through all the regions right across Canada, including Quebec and including the smaller provinces and so forth. I think you're to be commended that when legislation is introduced you take that approach.

I'm not a lawyer, and I take it that you are.

Mr. Laird Hunter: You answered your question.

Mr. Walt Lastewka: The department lawyer and the lawyers gathered around this table are trying to get through a bill. Ms. MacDonald, I think, mentioned the fact that we want to get through with the bill as the best possible, understanding that we might have to make changes in the future as we gain more experience, as the commissioner does education rules and then receives feedback that we will make changes. But not having a bill is bad.

So I've been going through each one of your amendments and your remarks and comments and so forth. Could you narrow that down for me to two items that concern the bar association on a priority basis that this committee should look at and maybe propose amendments on? Would it be possible for you to do that—maybe one apiece and we'll make it three?

Ms. Mairi MacDonald: Thank you for making it three, I say on behalf of our president.

Mr. Laird Hunter: For me, I think it's a difficult question really to answer, and to be fair.... We've had very useful discussions with the officials from Industry. It's the degree to which...and put on the perspective of the lawyer in the small town whose client says, what must I do? It's the clarification of the absolute obligation.

As I read this bill, there's this attempt to provide a series of recommendations that then, depending upon the interpretation of the commissioner, may or may not lead to oversight by the court. For most lawyers that's an unusual frame of reference. Any effort that could be made to clarify the absolutely obligatory, I think, would go a considerable way to clarifying intention and moving toward fulfilment of some basic purposes in the legislation.

The Chair: Ms. MacDonald.

Ms. Mairi MacDonald: That was a good answer the chief gave.

I agree, for what's it's worth, completely with what Mr. Hunter has just said. I think that would help a great deal, from the point of view of both the organizations who are going to be subject to this and the individuals who are going to be attempting to rely on it.

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I guess the other main issue this comes down to at the end of the day is making sure that if the privacy commissioner is going to have the degree of responsibility, of authority, and of discretion that this legislation would give him if it were passed, he have access to the resources he's going to need to understand his task and carry it out in a serious way.

This goes back to something I said in my opening comments. There's little point in going through the difficult and elaborate exercise that we've all been engaged in these last few months if the legislation is going to be so unwieldy that nobody's going to be able to implement it, or if there aren't the resources to do that. So if I had to pick one, it would probably be to make sure the implementation is realistic, or can be realistic.

The Chair: Mr. Gorlick, are you going to add anything to that?

Mr. Barry Gorlick: I'd like to take the opportunity to say, for myself, without having played an active role in the committee work until now, but as someone who understands how long a period of time in this country five years can be, that the initial review, not until five years has passed, is a potentially unappealingly long period of time. Not that subsequent reviews shouldn't happen on a five-year cycle, for all of the reasons, including fiscal responsibility, that makes sense. But five years from now, say, seems to me a long period of time in the context of the rapidly changing environment tied to the issues this bill addresses. That's my personal opinion.

Mr. Walt Lastewka: I think it's there just to make sure it's automatic after five, but the minister could at any time—

Mr. Barry Gorlick: Yes.

Mr. Walt Lastewka: Once we receive the annual reports from the commissioner, the minister could trigger that, too, though.

The Chair: This is your last question, Mr. Lastewka.

Mr. Walt Lastewka: When we've heard witnesses from the newspaper association, the broadcast association, the various associations, I've asked this question, because this bill, unlike any other bills, touches every Canadian. The education process—making sure we're not into a contradicting situation—by the commissioner, working in tandem with all associations, is coming to the top of saying if there was ever a time we could educate Canadians with a common theme, a common way of doing it, or banding together.... I know you would be doing that with your organization, but in line with the commissioner, have you had any thought with your association on this matter of working with other associations and the commissioner to make the education process faster, clearer, and less expensive?

Ms. Mairi MacDonald: The short answer to that is no, but it's a fine idea and we can recommend to the CBA executive, and also to staff, that they explore ways of doing that.

In terms of what the association can do to educate its members, and from its membership on to the clients that we deal with on a daily basis, while I was in the office this morning preparing for our appearance this afternoon, one of the staffers who's responsible for continuing legal education suggested that we initiate a process of actually using electronic media to get to as many of the lawyers who are members of the bar association as are interested in order to explain some of what's going on with this legislation. Certainly speaking for Laird and myself, and by extension I think at least for the rest of our committee, that seems like a great place to start.

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As to the other associations, the people who were part of the CBA's information technology and law reform committee do tend, by the nature of our practices, to be involved with some of those other associations. I expect as a result of that we'll be asked to help them understand what's going on with the legislation, so that they can in turn explain it to their members. But as to a specific CBA and other association plan, there hasn't been one formulated yet.

Mr. Walt Lastewka: I was looking from a proactive standpoint, having all the associations working with the commissioner to get the message out properly.

Mr. Laird Hunter: I'd simply add one observation and one caution. The caution is that as lawyers, particularly those of us who graduated longer ago than we want to remember, privacy and related fundamental concepts are not well understood. Human rights legislation is not well understood. As legislators, when you pass laws, if you pass speeding limit laws or laws that say you can't drive while using cell phones, that's easy to understand. When you pass laws that have this kind of gloss, you suggested, sir, that it be done quickly. I don't think it can be. I think part of the difficulty we're all going to face in moving this forward is how we inculcate a proper appreciation of the balance and necessity for both advancing complaints that are reasonable and, as businesses, dealing with them properly. That's going to take a while.

The observation is that we will do everything within our mandate and resources, I believe, to move that forward.

Mr. Walt Lastewka: Thank you.

The Chair: Thank you, Mr. Lastewka.

Mr. Jones.

Mr. Jim Jones (Markham, PC): Thank you, Madam Chair.

Yesterday we heard from a constitutional law professor from the University of Montreal who said that Bill C-54 represents a significant federal intrusion into provincial jurisdiction. He mentioned it could be a potential referendum issue. I understand that the Ontario government also has similar concerns.

Does the CBA share the view that Bill C-54, as presently drafted, unduly interferes with the provinces?

Mr. Barry Gorlick: The short answer is that we have no association position on that, sir. Certainly the range of constitutional concerns that was alluded to earlier is as broad as the playing field. We are in no position, nor do we have a consensus, to provide you with, quite frankly, the answer to a fair question. I'm afraid that may ultimately be something that another forum could be called upon to answer.

Mr. Laird Hunter: I think it is fair in our presentations and discussions this morning, and my words were chosen very carefully.

Each of the positions on that range is not without constitutional foundation. But we're not able to say an intrusion position is a valid position or a trade and commerce position. We're lawyers. There are several cases that advance each position, and as Mr. Gorlick has said, we're not in a position as an association to say which of that range is definitive.

Mr. Jim Jones: The other thing is that I agree that five years is a long period of time, and the provinces have to come on board within three years after this bill is enacted. I believe they do have to have their own privacy legislation in place in three years or this becomes the privacy of those provinces.

Mr. Laird Hunter: Until they then exercise it.

Mr. Jim Jones: Right.

Mr. Laird Hunter: It's just a point of fact. I think the case is that if five years go by and then a province purports to exercise its civil rights authority, the clause 27 exemption is still available to the government. So it simply gives a window before it comes into effect.

Mr. Jim Jones: I thought it was three years, and I thought it would be more appropriate to have a window of three years, so that in the event that the provinces do conform and bring out their own privacy legislation, we should maybe try to update our privacy legislation to conform to that.

The other thing is that paragraph 27(2)(b) of Bill C-54 allows the Governor in Council to order an amendment to schedule 1 of the bill in the event that changes are made to the code pursuant to its five-year revision schedule. Several witnesses feel this clause should be strengthened. Should schedule 1 be subject to change only by legislative amendment? In the alternative, should the legislation contain a provision requiring either prior consultation with the office of the privacy commissioner or in some form of parliamentary review for all proposed regulations?

• 1620

Ms. Mairi MacDonald: This is not going to sound like a clear answer to your question either, and I'm sorry, but as a general rule, the Canadian Bar Association has taken the view that fundamental change to matters of principle are things that should be dealt with, with as much public discussion and debate and democratic weight, if you like, as possible. On a number of interventions that the CBA has made on bits of legislation in the past, including a couple that I've been involved with personally, we have expressed dismay, if you like, at proposals to allow for substantive change to be made in regulations.

Having said that, this bill is unusual. I know we've all said that a lot, but the fact that that schedule is a standard that was built as a coherent whole and that itself, as I understand it, will continue to evolve with changes in the industry and with changes in the international environment, for example, within which Canadian companies operate, argues for allowing a certain amount of flexibility to the government to be able to update this legislation as needed over the course of the next few years.

Again, I guess to try to bring those two opposites together, we would just say that we would hope that any proposal to exercise this power under paragraph 27(2)(b) would be accompanied by the greatest degree of public consultation possible, because obviously this is a piece of legislation that's going to affect an awful lot of people in this country.

The Chair: Last question, Mr. Jones?

Mr. Jim Jones: Yes. This is a question I've asked many times, and I'd like to especially get the Canadian Bar Association's opinion.

Many witnesses have asserted that the privacy commissioner's power of investigation and audit under subclause 12(1) and subclause 18(1) are excessive. They refer in particular to the commissioner's search and seizure powers under these subclauses. Do you share the belief of many that the commissioner should be required to obtain a court order prior to his search and seizure powers?

Ms. Mairi MacDonald: The short answer is yes. That is consistent with the positions we've taken in this legislation with respect to judicial supervision of a lot of what the privacy commissioner does.

Mr. Jim Jones: Thank you.

The Chair: Thank you.

Mr. Shepherd?

Mr. Alex Shepherd (Durham, Lib.): Unfortunately Mr. Jones just stole one of my questions.

One of the other aspects that has been following this legislation around has been the concept of implied as opposed to specific consent. There's this concept of implied consent within the law, but a lot of groups have come before us and said that in fact the consent should be specific. I wonder if you have any views on that.

Mr. Laird Hunter: Whether it's defined or not, in terms of active or implied, the edges of any consent are always going to present a problem. In fact, just before we came into this meeting, I talked to one of the officials from Industry about the question that an association has membership lists. The membership lists have been discussed as a potential source of revenue for that association throughout the association, and in fact there have been resolutions passed. One of the things you sign when you sign your membership for application in the association is to be bound by the legitimate decisions of the organization. The organization then decides to sell the lists. Do you have implied consent?

Those kinds of issues are always going to arise. While I'm personally uncomfortable with imprecise definitions, given the framing of this bill and the need for oversight and the need for decisions to be made by someone like the privacy commissioner, subject to proper recourse to the courts, I think it's inevitable that you're going to find those issues frames.

• 1625

Personally, given the range of situations in balancing data protection and privacy on the one hand and the need for business to get on with business on the other, I'm not sure that is not the preferable way. In other words, allow those questions of implied consent to be dealt with in the course of the commissioner's review of the situation. If it comes before you as members in three or five years and you find there's a problem, begin to look at legislation at that point.

Mr. Alex Shepherd: The issue seems to have more to do—

The Chair: Mr. Shepherd, Ms. MacDonald wishes to reply to that.

Mr. Alex Shepherd: I'm sorry.

Ms. Mairi MacDonald: I was just going to add that this actually is one of the strengths. Having said what I've said about the weaknesses of using the standard as a schedule, this is one of the strengths of it, that it does, from what I understand, represent a consensus as to the kinds of circumstances that may come up in businesses' dealings with Canadians and Canadians' dealings with businesses. To the extent that it allows for implied consent, I think at least some consideration should be given to the process that reached that consensus and the number of circumstances and situations that were reflected in the consensus it came up with.

I don't think it's appropriate to say that consent always needs to be in a specific form, particularly since people who have spent a lot of time studying this have come to the conclusion that it's not always going to be easy or possible to get exactly the kind of explicit consent that I think some of the people who have appeared before you have asked for.

Mr. Alex Shepherd: We think of it as fundamentally something to do with e-commerce, but unfortunately it seemingly affects a lot of other industries. If it were simply e-commerce, we could say, if you're going to do something over the Internet, tick off a box and you have our consent. But there seems to be a lot of other industries, such as the insurance industry, that say they live on the whole concept that it implies consent. How do you reconcile those things? That's kind of what you're saying, keep the flexibility there to allow the privacy commissioner to make those choices. Is that what you're saying?

Ms. Mairi MacDonald: Yes.

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

Mr. Lowther.

Mr. Eric Lowther: I'm trying to get a read on what you're saying here. Sometimes you're saying go ahead with it, it's better than nothing, and then at other times I'm hearing that it's pretty ugly and we're not overly comfortable with it.

I'm just looking at your conclusion page here. Maybe the work in progress you referred to has moved you from the conclusion page. You say that the bill may lead to difficulties in interpretation; that until the constitutional parameters of the bill are determined, it is difficult to assess which activities will be covered by the bill; that the bill is more complex than it needs to be, and it generates confusion; and that with a view to clarifying its intended scope and application, the bill should be restructured. I'm looking at that and I'm saying, geez, with all those comments in the conclusion, I'm kind of surprised you're even supportive of it. You're saying let's go ahead with it even though it's really ugly.

Mr. Walt Lastewka: I didn't hear the words “really ugly”.

Mr. Eric Lowther: I'm paraphrasing, Mr. Lastewka. That's kind of what I'm hearing.

I'm trying to crystallize where you're coming from. Is it that you recognize the need for flexibility in this whole issue but you'd like to have a better defined context within which that flexibility is used, or is it a concern that this thing attempts to micro-manage things that can't be micro-managed and there should be some more definitively defined higher-level parameters within which it works? I'm kind of at a structural perspective on this thing. Where are you in that continuum, please?

Mr. Laird Hunter: I think the answer is—and we stated this the very first day we met with the officials from Industry—that this is an unusual bill. So if you ask a lawyer if they would draft something like this by choice, our answer is no.

• 1630

But given what is trying to be accomplished here, which is to introduce this balance between data protection on the one hand and business activity on the other and the attempt to have this escalating set of recommendations that then have to be implemented and potentially overseen by, first, the commissioner and then the courts, we've suggested in the course of our amendments a number of places where we thought it could be clarified. Introduce commercial activity. Take out use. Many of those have been accomplished.

At the end of the day we still come to a number of the concerns we raise here, but they're not concerns, in my friend's submission, that say that the bill is fatally flawed. They're just problems we anticipate the bill will create. One of those Mairi has spoken to.

This is a very complex concept and piece of legislation, and so much rests on the shoulders of the commissioner. Empower the commissioner both by resources and mandate to do his or her job. Look at that issue of judicial review. Look at the issue of whether or not there are certain circumstances where independent oversight of the courts should be available.

I may not have answered your question. But we're less concerned than when we started the process. We still have some concerns, but they don't by any means lead to a conclusion where we find that the bill should not proceed. It should be revisited, though.

Mr. Eric Lowther: Yes, I think that's the important point, that it should be revisited.

Your point that it's not what a lawyer would particularly draft is significant, I think, but at the same time, when this legislation is used, it'll be used by lawyers.

Mr. Laird Hunter: To be fair to our colleagues, lawyers were once described in this way: bringing digital information to lawyers is like trying to put a jet engine on a dinosaur.

In preparing our review of the work, we looked at the EU work, and just recently we pulled the British bill off the Internet. The British bill models this bill in significant part. The State of Victoria in Australia models this.

This is an attempt, which goes back over 20 years, to use principles and recommendations in quite a unique way. It's unfamiliar to lawyers, and that is something we're going to have to grapple with. Judges are going to have to grapple with it. The issues that were raised here about how things are defined are going to have to be revisited on a regular basis.

Having said that, we need data protection in the private sector.

Mr. Eric Lowther: Thank you.

The Chair: Thank you very much, Mr. Lowther. Just to clarify, Mr. Lowther, there were lawyers who worked on the drafting of this bill. I think what Mr. Hunter said was that if they had their choice, as lawyers they wouldn't have drafted it this way because of the technicalities and the difficulties with the bill and the structure of it. That's just to clarify. It's not that there weren't lawyers who drafted this bill.

That being said, we'll now turn to Ms. Jennings.

[Translation]

Ms. Marlene Jennings: Thank you. I'd like to go back to the issue of the Commissioner's powers. As representatives of the Canadian Bar Association, you're saying that the Commissioner would have too many powers and that he should be subject to certain limitations. Like any other organization, he should have obtain summons to appear and court orders in order to complete his investigation.

Several members of the association are also members of administrative tribunals. Moreover, in Quebec, these administrative agencies have exactly the same powers that are currently found in the bill: the authority to enter a place, with the exception of a private residence, and to verify documents and require copies. One of these commissioners is the Police Ethics Commissioner. His authority to act in this manner has never been disputed in court.

Accordingly, I would ask you to reexamine your opinion because, as far as I know, you have made no mention of that here. In answering my questions, you acknowledged that you still had to think about the issue. I would ask that you do the same about this matter. Thank you.

• 1635

Ms. Mairi MacDonald: I would be happy to do so. Please accept my apology.

Ms. Marlene Jennings: That's all.

The Chair: Mr. Dubé.

Mr. Antoine Dubé: I'm somewhat of the same mind as my colleague from the Reform Party with respect to your position. There are interpretation problems, constitutional problems, structural problems, schedule-related problems and many others. In addition, you have said, with respect to some specific issues, particularly the Constitution, that the reason why you are not taking a position is that there is such a wide range of opinions amongst your members and that, as a result, there is no consensus. This was made quite clear.

The other aspect is slightly different. Some witnesses have told us that, in their opinion, it was unusual for an Act to be amended by decree. You are legal specialists. I for one am a bit surprised, moreover, that my Liberal colleagues are not... Perhaps they are confident that they will be re-elected for at least another five years and therefore they're telling themselves that they will still be able to amend it. However, if they were in a political situation where it was likely that they would find themselves in the opposition, they would certainly fight for that, fearing that it would slip through their fingers.

Once the bill is adopted, the Cabinet can amend it by decree, which is unusual. You make no reference to this and you appear to accept the situation. I would like to hear your opinion on the matter.

Ms. Mairi MacDonald: Perhaps I might add to what I said earlier on this issue this afternoon. The Canadian Bar Association has a standard position with respect to substantive changes made to legislation by decree. We would prefer a more open process that provides people who will be affected by the change with an opportunity to express their points of view. However, we also recognize that rapid changes in the area of technology and in the field covered by this bill require some flexibility. However, we would simply request that fundamental changes be debated openly.

Mr. Antoine Dubé: Let's talk about another issue now. Some people have come out and said that we should separate the mandatory provisions contained in the schedule. You have in a way taken a position on this matter.

There's another aspect as well, and that is that the bill deals with personal information, which is covered by Quebec law 68 and, as indicated by its title, electronic commerce. Some people have told us that it would have been better to have presented two separate bills. What do you think?

As I may run out of time, I will ask you another brief question right away. Yesterday, constitutional experts, and I would imagine that you also have constitutional experts at the Canadian Bar... Do you think that the exemption provision, as it is drafted, warrants Quebec being exempted from the legislation, given the differences that I alluded to earlier between the Civil Code and the common law and the fact that Quebec already has legislation in force?

[English]

Mr. Laird Hunter: If I understand the third question, does subclause 27(2) and clause 30 give the Governor in Council power to exempt the Quebec bill, the answer is clearly yes.

[Translation]

Mr. Antoine Dubé: Great. And what about the other two aspects?

Ms. Mairi MacDonald: As for the issue of separating the protection of personal information from electronic commerce, we feel the need to link these two sectors in order to protect personal data, at least in this situation.

• 1640

Obviously, from the constitutional point of view, the power pertaining to trade and commerce, as it's expressed, is a little bit broader. It is quite likely that the government is seeking to broaden the level of protection for data.

Consequently, we recognize that it may be necessary to link the two sectors together because of the objective sought.

[English]

The Chair: Thank you. We'll have to move on. I thank you, Mr. Dubé.

Mr. Peric.

Mr. Janko Peric: Thank you, Madam Chair.

In your conclusion you made a statement that this legislation is long overdue, yet you say “At the same time, we remain troubled by some important aspects of the Bill”. My question is have you consulted, or were you consulted by, the department lawyers prior to the draft, or after the bill was drafted?

Ms. Mairi MacDonald: With respect to parts 2 to 5, the department lawyers, in particular from the Department of Justice, got authority from cabinet to consult before the bill was tabled. So one part of that consultation was a consultation with the Canadian Bar Association, and we went through that process.

As to part 1 of the bill, the privacy part, no, we were not consulted before it was tabled.

Mr. Janko Peric: Did you ask the membership for recommendations so you can pass it on to the department?

Mr. Laird Hunter: Yes, and we've done so. As I say, that accounts to some degree for why this is a work in progress. The table of comparison, which we've made arrangements to be distributed to you, we've discussed with officials from the Department of Industry, and many of the recommendations we believe reflect our input.

The Chair: Mr. Peric, just to clarify, I think maybe you were out at your other committee duty—some members do double duty—when it was discussed earlier that their report was done before the amendments were tabled. They've done the chart to reflect the amendments and it's a work in progress.

Mr. Janko Peric: My last question.

The Chair: Certainly.

Mr. Janko Peric: The recommendations were approved by your membership and your membership agreed with your recommendations?

Mr. Barry Gorlick: The plain answer to the question is that our elected council, which comprises nearly 500 members of our association of lawyers—

Mr. Janko Peric: Out of 35,000.

Mr. Barry Gorlick: —out of the 35,000 from across Canada, has not considered the recommendations in this report as a matter of council policy, but the dozen or so sections of our association to which Mr. Hunter referred earlier have considered all of these.

Mr. Janko Peric: Thank you.

Ms. Mairi MacDonald: In addition, as Mr. Gorlick started off by saying, it's my understanding this has been approved by the Canadian Bar Association as a statement of the CBA, which means it has gone through the legislation and law reform committee, which is intended to ensure a certain amount of consistency and quality control, as I understand it, on the type of work we're doing, and to ensure that we are representative of the views of the bar as a whole.

Obviously it's not the bar's practice to go back to each of its 35,000 members and ask them to consider and sign off on each submission we might make to a committee like this.

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

Mr. Jones.

Mr. Jim Jones: I'm going to refer to your conclusions too. In the fourth paragraph you say that:

The unusual style of drafting in the Bill also remains problematic. It renders the Bill more complex than it need be, and generates confusion with its intermingling of obligations, recommendations and explanatory commentary.

Wouldn't it be wise to try to get this right over the next couple of months instead of being in a hurry to enact it?

• 1645

Mr. Laird Hunter: The statement made at the outset is that as lawyers, when we reviewed this, our initial position was, and is, that it could have been drafted a different way. This is a very unusual piece of legislation. I can't tell you, and I don't think any of us can tell you, whether if we went down that road it wouldn't be equally complex. Our point was simply to emphasize that we must be prepared for some confusions that result because of both the nature of the subject matter and the manner in which it will have to be interpreted. But I think that may well be—this was written some weeks ago and we're changing our mind in some small measure—simply a function of the subject matter.

Mr. Jim Jones: Who is going to benefit in this by having it confusing? Is it going to be the individual citizen—because, as Mr. Lastewka said, this affects all—or is the beneficiary going to be the legal industry?

Mr. Laird Hunter: I think the beneficiary will be Canadians. I believe very strongly what Mr. Flaherty said in his testimony to you, that there will be a national effort by privacy commissioners to come to a consistent set of regulations, and that they will learn as they implement this to try to develop that balance between the need for data protection on the one hand and efficient business practice on the other. If this bill is consistent with other kinds of legislation, lawyers are not likely to get involved except in terms of advising clients on codes, which is part of the normal commercial practice, and eventually on court applications. I'm not sure that I would look to this for an annuity.

The Chair: Mr. Jones, do you have further questions?

Mr. Jim Jones: Yes, the other question I have is do you feel the government's proposal to amend the definition of “commercial activities” under Bill C-54 is adequate?

Mr. Laird Hunter: You're not going to let us get away.

I'll give you a lawyer's answer. I think it's adequate in the context of a bill that is evolving a set of definitions. The conservative lawyer in me would like a very much more defined set of rules, but when you look at the schedule and you look at the need to have this tested in the workplace, and where data is held and where business is conducted, the commissioner is going to make judgments about what commercial activity is. As we said earlier, hopefully those decisions will be proper ones, and possibly they need to be tested by a court review. That was the source of those observations.

Mr. Barry Gorlick: And he was referring of course to the small “c” conservative lawyer in him.

The Chair: Thank you very much.

Mr. Laird Hunter: I'm from Alberta. I'll let you decide.

The Chair: Okay. It's a non-partisan committee here.

Mr. Shepherd.

Mr. Alex Shepherd: I would like to revisit this issue of the rights and powers of a commissioner again, and I know you took a reference that you'd get back to us. In view of the attitudinal thing, that is, that we're delegating a lot of responsibility to the commissioner to do just what you're saying, interpret some of these things—and we're not too sure just what they are—what realistically is the problem with requiring the commissioner to get a warrant to do search and seizures. Why is that a problem? Is that unduly restricting the commissioner?

Ms. Marlene Jennings: They're going to have to think about it. It went through all of their sections and no one raised it as an issue.

Mr. Barry Gorlick: We're going to have to think about it.

Mr. Laird Hunter: We're going to have to think about it.

Ms. Marlene Jennings: I said you would; nobody raised it.

Mr. Barry Gorlick: Just for the moment I can think of a list, now that I've been thinking it through as a result of la première question, of at least 10 pros and 10 cons that we'll be wanting to share with you; everything from the range of complexity, to delay, to cost on the one hand, to the other side of that particular coin. So it's a very fair question.

Mr. Alex Shepherd: Just to clarify it, if we think there are uncertainties in the interpretation of this law, wouldn't it be more appropriate to err on the side of rights of individuals rather than delegating the possibility of excessive power to the commissioner?

• 1650

Anyway, I know that gets back to the heart of the question. So you can get back to us. That's the problem we're having.

Mr. Barry Gorlick: Yes.

Mr. Laird Hunter: The problem is how the balance is struck on an ongoing basis.

The Chair: Thank you, Mr. Shepherd.

Mr. Lowther, do you have any further questions?

Mr. Eric Lowther: No, I don't. Thank you.

[Translation]

The Chair: Mr. Dubé, do you have another question?

Mr. Antoine Dubé: I have many other questions, but I will not ask them. However, I would like to thank you for your efforts.

Oh! There is a tiny little question that I almost forgot to ask. I understand the situation you are in. You have been invited, as members of the Canadian Bar Association, to respond to a bill drafted by the government. This happens often. You have given us a very qualified opinion, particularly since you do not have a consensus right now on which to base yourself, particularly when it comes to constitutional issues. Does the Canadian Bar ever vehemently oppose a bill and say that it should not be adopted?

[English]

A voice: Sure.

[Translation]

Mr. Antoine Dubé: Yes? All right.

[English]

The Chair: Thank you, Mr. Dubé.

Mrs. Barnes.

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

I would like to add my pleasure and thanks for your hard work in advance of this bill, and especially the part that you were most concerned with originally, electronic signatures and a lot of those parts of the bill, because we haven't had a lot of testimony about what will happen.

I also want to share with you that the first time I read this bill I had an incredible discomfort also. Then I thought, well, gee, we can do better than this, and maybe there's not enough teeth in it, and why haven't we done it this way and that way? Then trying to juggle the principles that we're trying to get at and the absolute vacuum that's out there and how slowly voluntary practices actually have effect, and the real need for some privacy here, I found it increasingly persuasive that movement was absolutely necessary, and I'm glad you've come to the same conclusion.

Even though you have raised some potential where we're not sure, what I really hear you saying is that this is my professional discomfort with not being able to give you a firm opinion. Would that be a fair statement of what I've heard?

Mr. Laird Hunter: Very much so, on this point. I know one of the things we did in our committee, early on in our discussions, was to say, imagine how you'd give advice on this bill. If I have a divorce matter or a criminal matter, I have a trained set of methodologies I can refer to and use in arriving at my opinion. Here, I look at the schedule, and I say, well, ultimately, what is enforceable is what's in clause 14. But it's only enforceable if the commissioner makes a report and it doesn't arrive at a result, in effect, that's mediated. It's an unusual legal regime.

So you're absolutely right. Our discomfort is to some extent the discomfort of the new, but also the discomfort of the unusual.

Mrs. Sue Barnes: Yes.

I'm going to go to Ms. MacDonald now. One of the things I heard you say very clearly was the fact of trying to put something as novel as this into practice without sufficient resourcing, and the privacy commissioner having to carry out many different roles. Again, that's something that's fairly novel, because you're the educator, you're the investigator, you can be the initiator, and you can come up with the outcome. We don't have a piece of criminal legislation here.

Regarding your answer with respect to the search and seizure powers and the audit powers, would that have an effect on your consideration of that situation? We've heard direct testimony from at least two witnesses saying that this is of grave concern to them, yet at the same time what we're trying to do is get some privacy protection and some flexibility, knowing that there could be a huge disparity in resources surrounding these issues.

Some of the details that would give rise to complaints are so minor. Imagine if you were one potential shopper on a mining data thing that ended up having some marketing information sold about you. The French have an expression: Est-ce que ça vaut la peine? Would you think it's worth the pain?

Could you comment on that? I can tell you, it's something I've struggled with.

• 1655

Ms. Mairi MacDonald: I think the best comment I can make on it is to thank you for adding to the list of things we're going to need to think about in coming up with an answer to Madame Jennings' question. I'm sorry if that sounds flippant; it really isn't intended to be. Definitely, they are considerations.

The privacy commissioner has a huge load. We've said in our written submission to you that if the legislation is enacted, it's important that it command the respect of both individuals and organizations to which it applies, that it be seen to be fair and that there is a degree of procedural fairness associated with it. If we're lawyers, we fall back on the rule of law in looking at how to ensure that what is presented looks like it reaches an appropriate compromise and balance of the rights that are involved, and the things you've enumerated are definitely part of that calculus.

Mrs. Sue Barnes: Also, there's very much an attempt at a somewhat light touch here. You can go in and mandate and mandate; we don't have that approach. Your brief identifies exactly the two reasons we don't have that approach. If you want something done and you want it done now, not a decade from now...the industry standard, the model, is there and it has used, to a large extent, precatory wording, precatory obligation, and commingled those philosophies. It has created a problem in drafting. It's going to create a problem in interpretation, that at the end of the day we're moving forward from an initial base.

I put to you what I put to the two witnesses who, I think, in good faith and protection of their own commercial interests, came forward and said, hey, this may not be fair. I think we have to wear both hats here—fair to whom? Like everything else in this bill, we need to put an equilibrium out there.

So those will be my comments. I thank you for sharing our concerns and attempting to work with us in the solutions.

The Chair: Thank you, Mrs. Barnes.

Do you have a response, Mr. Hunter?

Mr. Laird Hunter: I have a quick response, and it goes back to your original question.

The initial instinct I have is that in many administrative tribunals we're dealing with limited jurisdiction with respect to a specific subject matter, and here we're dealing with a very broad jurisdiction and immensely broad subject matter. The natural tendency is to say there's a potential for abuse, and so that's what animates the concern, but we very much will go back and examine it in detail for you.

The Chair: Thank you.

Mr. Lowther.

Mr. Eric Lowther: Thank you, Madam Chair.

My colleague from the Bloc mentioned—and we heard this in earlier testimony—that in Quebec there are privacy laws that go beyond what is required here, and we've been advised that if there were ever a challenge as to which took precedence, this federal legislation would probably undermine what Quebec has put in place.

What's the jurisdiction? Is this intrusive into provincial privacy laws, from your perspective?

I know I'm going off on a different tangent here, but if provinces want to go beyond this and try to enforce it, would this undermine what they're doing because this is sort of a new intrusion into an area where federal legislation previously didn't penetrate?

It must be a good question. You all look confused.

Mr. Laird Hunter: I'm confused because I'm not sure I understand how the legal issue could arise. As I said earlier, if the federal government exercises its trade and commerce power and a province exercises its property and civil rights power, and the federal government says that under subclause 27(2), we're not going to exercise our trade and commerce power, then there is no conflict. That's true in a range of subject matters under the Constitution.

I think what you're saying to me would only arise in a context where a province passed an act and the federal government didn't exempt it. The intention of the bill as it's written is not to provide for that. The only area where there might be a different set of standards is with respect to federal works and undertakings, which, as I said earlier, is quite similar to the labour code issues.

• 1700

The Chair: Ms. MacDonald.

Ms. Mairi MacDonald: In addition to what Laird has just responded to, do I understand correctly that you're worried that this might move the yardsticks back in some way, that enacting this legislation with this degree of protection might somehow lower the standard of protection that other jurisdictions would be interested in enacting? Is that what you're asking about?

Mr. Eric Lowther: Basically, yes, if—

Ms. Mairi MacDonald: I think the answer to that has to be no. Obviously legislation does evolve over time and people do look at other jurisdictions when they're trying to produce it. They look for precedence and for ideas as to how to approach a subject, especially a subject as complex as this one. You've certainly heard from the officials about the other jurisdictions they've looked at.

At the end of the day, any legislature is going to have to look at what its powers are and what its objectives are in crafting a piece of legislation to deal with a particular situation. As we said to Monsieur Dubé earlier, the powers, both in terms of the constitutional division of powers and in terms of the structure and the mindset, if you like, behind the Civil Code in Quebec, are different from the powers, the structure and the mindset available to the federal government in dealing with this legislation, and it would be different again from what the Province of Saskatchewan would have if it were to work with a similar set of facts.

Of course, as well, any responsible legislature, as you know, is going to look at the set of facts that it's dealing with at the time that it deals with it.

I don't think the concern about moving the yardsticks back is one that should be worrying you too greatly.

Mr. Eric Lowther: So you're saying that the separation of powers is basically the dividing line here, that we don't need to worry about overlap of information protection because the intent and the powers given to the various legislatures would determine that.

Ms. Mairi MacDonald: From the point of view of interpreting it for a client, obviously we as lawyers are going to have to worry exactly about whether there is an overlap, and we'll advise on particular fact situations.

But I think in general that's right: each legislature has to act within its powers and objectives.

Mr. Laird Hunter: I think the hope of the association is similar to one that was expressed to you in Mr. Alan Young's testimony before you a few days ago, when he said:

Because we have a division of authority in the Constitution between various types of financial institutions, and as those institutions are engaging more and more in each other's businesses, overlaps do arise. We hope the advent of Bill C-54 and its passage will prompt a program of cooperation and harmonization that builds towards a system of national regulation....

We as an association take a very similar view, respecting and recognizing the different constitutional pieces that are in that national regulation.

Mr. Eric Lowther: I thank you for that thoughtful response.

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

Before we let our witnesses go, I just want to clarify a couple of issues. We appreciate your detailed brief and the fact that you then took the time to consider the amendments we put forward. As a committee, we thought that getting amendments out there would help move the discussion along. We anticipate that as this bill goes forward, with discussion at the next round or in the Senate, when and if it gets there, the discussion will be on a different level because of the number of amendments that are proposed and are before us right now.

Yesterday and a couple of days ago we had a number of concerns with regard to the insurance industry in particular. Our particular concern was about fraudulent activity, with regard to clause 7 and necessary consent—or the ability to use information without consent—and the wording of it.

I note in your look at the amendments that clause 7 really hasn't been addressed in the way you would have liked. Even with regard to the proposed amendment for paragraph 7(1)(b), although it addresses a point raised by other parties, you seem to say that there are still a couple of things outstanding. With regard to the reference to offence, where it's, as you say, unduly restrictive, you don't propose an alternative wording.

Mr. Hunter.

Mr. Laird Hunter: I'm sorry about that. We did meet with industry officials on Friday. We've had some very good discussions about both the collection side and the disclosure side.

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I think it's fair to say that we proposed—and I understand that it has been accepted at least in concept—a wording to deal with “offence” to change it, in effect, to “reasonable anticipated breach of an agreement or the laws of Canada or of a province”. Then there will be a question in paragraph 7(3)(c) as to the need to have it on the disclosure side, and I understand that is being worked on. Much of our concern has been voiced and, in part at least, accepted.

The Chair: Okay. There are two parts to this question. In particular, we've heard from a number of sectors that they have their own sectorial codes and that they would prefer to be bound by their own codes instead of schedule 1 because their codes fall within the 10 principles that the schedule 1 code, the CSA code, is based on. I'm just wondering what your position would be on that.

Mr. Laird Hunter: We don't have one.

The Chair: Okay. Speaking as the chair of this committee and as a lawyer, and having listened to a number of witnesses, to take Ms. MacDonald's comments about schedule 1 perhaps one step further, I have grave concerns about different codes, but I also have grave concerns about the fact that consultation for the changing of schedule 1, which you seem comfortable with, involves consultation without parliamentarians. We have difficulty with that.

I know you were talking about full consultation. I think Mr. Jones addressed this in his earlier question when he was asking about the fact that changes to schedule 1 would be by Order in Council. As a number of members on this committee—from all sides—have expressed time and time again, we have grave concerns.

Those amendments should come back to committee, which is part of that public consultation process. I know your discussions with the department have ensured that you'll be part of a consultation process. We, as parliamentarians, would also like to be part of the consultation process. As a lawyer and a parliamentarian, I will say, as was stated by another member, who knows who comes after us? But I believe that someone should have that ability to review.

Ms. MacDonald.

Ms. Mairi MacDonald: As I say, the position of the CBA has been that on matters of major policy there should be the broadest possible consultation and the most democratic possible consultation. I don't think you'd get any objection from us or any kind of disagreement—I'm out on a limb again—if you were to make that sort of recommendation.

On the question of sectoral codes, as Mr. Hunter says, we don't have a position. Obviously this legislation is not structured to recognize sectoral codes. There are a couple of ways of looking at that. Mr. Hunter mentioned the proposed legislation from the State of Victoria, which does have an approach to sectoral codes that is quite different from what's been adopted here, and if that is something that the committee is concerned about maybe that would be a place to look for some guidance—at least for an option.

My understanding of that—and I'm sure I'll be corrected if I'm wrong—is that it provides the implementation authorities the authority to review and approve a sectoral code as an appropriate way of dealing with these issues from a particular part of the industry. It may be of interest to you.

The Chair: Thank you.

I want to thank all three of you for joining us. I want to thank all the members of your sector who have taken a look at this on behalf of the bar association. I want to thank you for your participation with the department and for coming before us. I know that you have time commitments.

We have a motion we still have to deal with, so I'm going to excuse you. Our committee meeting will continue.

Members should have the agenda in front of them. We have a motion that we're going to be dealing with, but just before that I want to talk about the trip scheduled for Monday. We have some difficulties with that trip. As it stands right now, we don't have an even number of opposition and government members scheduled for that trip. Regretfully, I didn't know or didn't solicit other opposition members to come with us. Unfortunately, we're going to have to postpone that trip until a later date.

As well, a number of members who have concerns about Bill C-54 have approached me. They don't believe they're going to have adequate time to deal with questions and concerns before Tuesday's scheduled clause-by-clause consideration.

I'm asking the clerk to reschedule that trip for Monday, April 26, the third Monday after the break. Unfortunately, we don't really have much choice. I just want to let everyone know we're going to have to reschedule it. We're going to have to redo the motion, which the clerk will prepare, so we can get that back to the liaison committee. I don't anticipate we'll have any problems. But I want to apologize to everyone for how that affects your schedule.

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I just want to let you know we don't have the numbers to go on Monday. We'll have to circulate a larger or broader representation next time. Maybe what I should suggest is that if we can't get some opposition members to attend, so that we can send enough balanced government members, we could ask you to look for replacements for April 26. If someone's not available or isn't that concerned about that specific outing, then I would appreciate it if we could look for replacements so we can allow the government members to attend as well.

That being said, we now have future business. If everyone's okay with that, what I'd like to do then is do the motion for the space agency trip again, right now.

I don't have the required 48-hour notice, but if everyone's in agreement, what we could do is adopt a motion today basically postponing the trip that will now take place on Monday, April 26. And we ask again for the required funds—$2,003—and that the necessary staff accompany the committee.

Mr. Stan Keyes (Hamilton West, Lib.): So moved.

The Chair: So moved by Mr. Keyes, seconded by Madame Jennings.

(Motion agreed to—See Minutes of Proceedings)

The Chair: Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I agree with the motion, but I have a small question. I believe you are talking about taking a bus. I know, moreover, that it is impossible to take the researchers. Personally, I think that it would have been useful to take our assistants. They work with us. It would be interesting to bring them if this did not mean additional costs.

[English]

The Chair: No, in fact the researchers are preparing to attend with us, because it's the same size of bus, regardless. What we need to have, though, is enough members. We do have the researchers, who are prepared to attend with us. In fact, two of them, I understand, were going to come on Monday, so I anticipate they will be as well.

[Translation]

Mr. Antoine Dubé: I'm referring to our assistants.

[English]

The Chair: Do you mean your own staff people as well?

[Translation]

Mr. Antoine Dubé: The ones from the Parliament. I'm talking about the researchers that work for Ms. Lalonde and myself. These are our employees in Ottawa. Each member has one person.

[English]

The Chair: Well, we'll have to—

[Translation]

Mr. Antoine Dubé: Rather than researchers...

[English]

The Chair: —take a look at that, Mr. Dubé. Let me find out how many seats are on the bus and what would be seen as reasonable. Sure, we'll figure it out for April 26. The clerk's going to have to look at it because we're not sure how the expenses would...how we can deal with that in a committee budget. But we'll get back to you on that by next week.

We now have Mr. Jones.

Mr. Jim Jones: I guess I only get to read the motion, right? Just as read.

The Chair: As read? Okay.

Mr. Stan Keyes: Well done.

The Chair: Did you want to speak on it, Mr. Jones?

Mr. Jim Jones: Well, can I this time? For the other motions, I wasn't allowed to speak.

The Chair: Are you going to speak or read?

Mr. Jim Jones: Well, I'll read.

The Canadian aerospace industry, I think, deserves a clear answer on this. The decision that was rendered last week by the WTO declared that portions of the Technology Partnerships Canada program are an illegal subsidy. I think that's probably helped quite a bit. We're talking about 60,000 people who are employed in this industry. Since 1996 the TPC program has invested nearly $600 million in 67 projects. I think it's important, that this is probably going to hurt this industry if we can't find other solutions to make sure it stays viable. I think we should be looking at it.

The Chair: Mr. Lastewka, then Mr. Shepherd.

Mr. Walt Lastewka: Thank you, Madam Chair.

Some of the comments Mr. Jones made are not accurate. The TPC program was not challenged. The regional jet portion, one minor portion of the TPC program as identified, was challenged.

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In fact, we're not yet sure whether we are going to appeal it or not appeal it. The minister is still reviewing the decision that's been brought forward. We could appeal it. We could not appeal it. We could make some minor changes to the regional jet portion, and it's only a clarification on R and D on exports.

So I think it would be premature for us to start going into this and assuming things. I don't know if you've had a chance to read the whole document or not, or whether it's your researchers. So I would see no reason to go through that now. We're going to have the minister here the first week in May. You can ask all the questions you want there. For us to go into a study right now is way too premature. I'd be voting against it.

The Chair: Mr. Shepherd, you had a comment.

Mr. Alex Shepherd: Yes, I just reiterate what Mr. Lastewka said. I think it's premature, because we're still in a period in which the minister has the ability to appeal.

Secondly, I think if we started getting into a debate here, it may just do the things you're afraid of, that is, creating more uncertainty in the industry regarding the TPC program. And as has been stated, it's only a small portion of that program that has been questioned by the WTO.

I think it's premature and I think in fact it could have quite a negative impact on the industry if we started getting into a long debate about it.

Mr. Jim Jones: I think the last time a similar motion was brought forward by a member from the Reform Party, the committee was told at that time it would be unwise to hold such hearings until there was a final report. At that time they said it was premature.

The Chair: Mr. Jones, just to clarify, at the time there was no ruling, there was no formal ruling any of us had in our hands, and it was Mr. Pankiw's motion, I believe.

The reality is, as Mr. Lastewka has already explained, that there is an appeal process. So until the final appeal process is finished, it would probably still be premature.

You have in the wording of your motion “immediately”. Maybe you want to clarify that for me, because we have outlined several times already what our commitments are as a committee, and our commitments are legislation first. We couldn't consider this until after Bill C-235 anyway, and we already have undertakings to go to main estimates to deal with some of your motions. So I guess we have to—

Mr. Jim Jones: I would say that I'd be prepared to take the word “immediately” out of the motion and that we look at that when it's appropriate, when we have time to look at it. But we should be looking at it.

The other thing is that in the press release, I think the minister said it was a victory for Canada, but basically Brazil does not concur with those statements.

The Chair: Okay. Mr. Keyes. Walt.

Mr. Walt Lastewka: For that reason, it's of no value to bring it to this committee. Let the discussion go on between the two people, and if there's an appeal, there's an appeal. After the appeal, then bring it forward. But I think any discussion we have on it now impairs what we want to get done.

The Chair: Mr. Keyes.

Mr. Stan Keyes: Madam Chair, I ask for the question.

The Chair: Mr. Jones, do you want to vote on your amendment? We have an amendment to remove the word “immediately”.

Mr. Jim Jones: Yes.

(Amendment negatived)

Mr. Jim Jones: Could I have a recorded vote on the motion?

The Chair: On the motion, okay. The clerk will call the required vote.

(Motion negatived: nays 6; yeas 3—See Minutes of Proceedings)

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The Chair: Thank you all very much.

Mr. Lowther.

Mr. Eric Lowther: Madam Chair, I don't know whether you'll allow this or not, but I would ask the committee to consider something that's coming up on our agenda, Bill C-235.

The Chair: Bill C-235.

Mr. Eric Lowther: This bill is coming forward from Dan McTeague. He has made massive amendments to that bill. He's basically rewritten the bill with his amendments. And I know the clerk is going to be making an assessment as to whether or not it's even the same bill, and whatever. First, I'm suggesting we not even hear it because it's been changed so substantively, and if we are going to hear it, that we have more time to do it. I understand that we are up against some time crunches, but it's certainly changed the direction of that bill enormously.

Mr. Stan Keyes: This is not a steering committee, Madam Chair.

The Chair: No, but I want all committee members to understand what's happening. We only have two weeks in which to hear this bill, as it stands. We're not under time crunches. We are limited by the legislation that is there for private members' bills. Because his bill is under the old rules, not the new rules, there is no 30-day extension, which I know some witnesses have led members of this committee to believe. Their research, I apologize, is incorrect. We must finish this bill or it's deemed accepted.

If the legislative clerk who's looking at the bill—it's not our clerk, it's the legislative clerk right now who's looking at the bill—deems that these amendments will substantially change the bill, they will be ruled out of order, which means that the bill goes ahead without any amendments.

I asked Mr. McTeague to table his amendments in advance, to have discussion, because we were under such time pressure. He did that on my request. If his amendments are deemed out of order, the bill continues as is, which means it goes.... All the witnesses are prepared to go ahead or were asked to go ahead based on the bill before the amendments were proposed.

He's put those amendments out there. If they're deemed to be in order, we still have to go ahead. We have no choice with the timeline. I apologize, but there's not much we can do with regard to the timeline...just so everyone is clear on that, because I know you're going to get approached. I've told witnesses who have approached me that this is the timeline, this is the problem we're under, this the day they've been asked to come. Some witnesses have said they can't possibly look at these amendments. It will take them hours and days and very expensive research to look at the amendments. They have the right to come before the committee and say that, and we'll let them have their day at the committee, and we'll take their comments accordingly, I'm sure.

But that being said, we have to deal with the bill in the time limits we have. It's deemed adopted if we don't deal with it. So we have no choice but to go ahead.

Mr. Jones.

Mr. Jim Jones: Yes. I was going to say that basically what he's done is gut the bill other than one line.

The Chair: But let's be honest here. These are proposed amendments. They're proposed amendments that this committee, if they're ruled in order, would accept or reject. He can't change the bill unilaterally. So I think we have to remember this. Let's deal with the process as it is.

I really don't want to debate what's going to happen. I just wanted to outline what the process is. We'll know tomorrow hopefully from the legislative clerk if the amendments are in order or out of order—by tomorrow afternoon, the clerk informs me. So by our meeting tomorrow afternoon we should have an answer, which we can all go home and think about. We have no choice but to go ahead.

Mr. Lastewka.

Mr. Walt Lastewka: I just want to talk process. My understanding of the process is that the bill comes to us in the manner it left the House. The bill comes here, we can hear witnesses and we can have amendments, which would be tabled to the clerk at any time. When we're ready to look at amendments, we would bring those amendments forward and they would be voted on, yea or nay. Is that not the process?

The Chair: Yes. It's the same as what we're doing here. But I asked Mr. McTeague, if he had any amendments, to give them to us in advance because of the time pressure, so they could be discussed. Now, that being said, the legislative clerk, either way, would rule them in or out of order, and that's part of the normal process.

Mr. Lowther.

Mr. Eric Lowther: I just want to say I appreciate your hearing that, and I also appreciate the thorough review of the process so we all understand what's going on. My thanks to you for doing that.

The Chair: Madame Jennings.

Ms. Marlene Jennings: I want to add my words of thanks as well. My sense is that some of the members around the table don't realize that precisely because of the process Walt just described, those proposed amendments could have come to us at the very last minute, after we had held all kinds of hearings. So the chair's asking, if there were any, to bring them forward so they could be deemed in order or not in order saved us possibly a lot of wasted time. So thank you, Madam Chair.

The Chair: Thank you very much.

The meeting is now adjourned.