EXTRACTS FROM HANSARD -- PROCEEDINGS OF CANADA'S SENATE :
The following extract has been taken from Hansard Records of Canada's Senate:
Debates of the Senate (Hansard)
1st Session, 36th Parliament,
Volume 137, Issue 113
Thursday, February 18, 1999
The Honourable Gildas L. Molgat, Speaker
Annual Report -- Consideration in Committee of the Whole
The Senate in Committee of the Whole on the Report of the Privacy Commissioner for the period ended March 31, 1998, tabled in the Senate on September 29, 1998.
The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Fernand Robichaud in the Chair.
Senator Carstairs: Honourable senators, I move, seconded by the Honourable Senator Kinsella, that Mr. Bruce Phillips, Privacy Commissioner, be escorted to a seat in the chamber.
Senator Kinsella: Honourable senators, while Mr. Phillips is being escorted to the witness table, I believe there is agreement that honourable senators who are sitting in seats at an extreme distance from the witness table may take vacant seats that are closer to the witness, and that the rules be waived in regard to where one must be seated whilst asking a question in Committee of the Whole.
The Chairman: Is there unanimous consent for the suggestion made by Senator Carstairs that senators be allowed to speak from a seat other than their own during these deliberations?
Hon. Senators: Agreed.
Pursuant to order adopted October 29, 1998, Mr. Bruce Phillips was escorted to a seat in the Senate chamber.
The Chairman: I welcome Mr. Phillips, Privacy Commissioner, and Mr. Julien Delisle, who is with him.
Mr. Bruce Phillips, Privacy Commissioner of Canada: My address will be as brief as I can possibly make it. I must start by saying that this is quite a thrill. It is an extraordinary occasion for us. This is the first time I have been called to appear before a Committee of the Whole of either house.
In my early days as a press gallery reporter here, about 40 years ago, appearances of witnesses before committees of the whole house were quite commonplace. It is now somewhat out of fashion, which is too bad. Whatever the intention, the result has been reduced public visibility of the legislative process and of the workings of government. When all or most of the departments and agencies were before committees of the whole, for better or for worse, it was always under the eye of the fourth estate. Even if it was only one lonely wire service reporter - although there were usually quite a few of us - since we had to sit there, we daily wrote thousands of words and scores of stories about it. Now that it is spread across many committees, I think much of the work goes unseen and unreported. Quite frankly, I think this contributes to the disconnection between Parliament and the public.
Senator Prud'homme: Bring him into the Senate!
Mr. Phillips: I will confess to having fantasized about that possibility once or twice. But for a stroke of fate or two, who knows, I might have made it here on my own!
If today's session represents the beginning of a revival of the process of Committee of the Whole, forgive me for attaching some special distinction to my appearance. I hope this does become true - at least for that small band of people who are known as officers of Parliament. That is, the half dozen or so of us whose appointment alone in the entire federal establishment requires a vote of approval by both Houses of Parliament and who answer to no ministry whatsoever but only to Parliament and who make our reports directly to the Speakers of both Houses.
Parliament has decided that some issues, values and interests are of such basic importance in Canadian life that they need a champion who stands at arm's length from the government and from the political debates of the day. Thus we have, among others, the Auditor General, the Chief Electoral Officer, the Commissioner of Official Languages, the Information Commissioner and, in my case, the Privacy Commissioner. All of us, in our special areas, share a common charge of working to preserve fairness, decency and honesty in public administration in particular and, to the extent possible, in Canadian life generally.
No one could ask for more in this life - and, believe me when I say this - than the opportunity to represent values of that kind. Please allow me, while I am on this subject, to record my thanks to the Senate for signifying its confidence in my fitness to continue in this office by having approved an extension of my term a while ago. In the time remaining to me, I hope to promote closer ties and greater interest by Parliament in the work of my office and similar offices. Also, I want to express some particular personal pleasure in my appearance here today. Many of you on both sides of this house are personal friends and acquaintances and former colleagues of mine. It is good to see you again.
Having said all that, I wish to express my gratitude at having the great good fortune, for the past eight years, to serve Parliament in an office that has been incredibly fulfilling, challenging and exciting. As most of you know, my term expires in about 15 months. This, therefore, might be my one and only shot at a meeting of this kind. On that account, I should like to take a minute or two to talk about the concept of privacy in the broad sense.
You often hear the phrase these days that "privacy is the issue of the nineties." I think there is some truth in that statement. In any given week, you only have to look at the daily papers or turn on the television to see how frequently the subject of privacy is raised as an issue of contemporary importance. I think it must also have been an issue of the 1890s, the 1790s and the 1690s - in fact, just about as far back as you can go into the mists of human history. "Privacy" is merely a convenient but altogether inadequate word that we use to encompass a set of values and considerations which touch almost every aspect of our lives, which have evolved over centuries of human experience and which, in every age, have set the terms and conditions of social interaction both between and among individuals and individuals and institutions.
Mr. Justice La Forest, who recently retired from the Supreme Court, described "privacy" as the value "that is at the heart of liberty in the modern state." That is a wise observation indeed. If you would assess the degree of freedom that exists in any particular society, look first to the degree of private life that its citizens can command and you find a striking correlation. I have only to mention some of the oppressive totalitarian regimes, many of which are still around and we have seen just in this century.
"Privacy," in short, is just another word for "freedom." Without it, we do not have any personal autonomy, no liberty and darn little dignity. The degree to which we honour and defend the right to a private life is precisely the way we measure the respect that we give to each other as individual and distinct human beings. It follows that if we chip away at this edifice, we do it at our peril. Enough chipping away and it all falls down. It is the chipping process that I should like to talk about today.
Freedom does not always or even very often disappear in some cataclysmic eruption. It slips away quietly, bit by bit - usually the victim of many plausible and seductive propositions which society accepts out of either indifference or ignorance. In my view, it is this process which stands, in our time, as the greatest danger to the priceless right to a private life that we now enjoy.
There are privacy problems cropping up in all kinds of places these days. In surveillance technology we are now under the eye of someone's camera almost every waking hour, and in biological sciences such as drug testing, DNA testing, and so on we are also experiencing privacy problems. We could profitably discuss all of these things one at a time and at length. In fact, before some of your committees we have discussed some of these matters already.
My remarks today should be considered mainly in the context of the problem that arises from the application of computer and communications technology to the massive amounts of personal information that is being gathered in by both the corporate and governmental worlds. The problem here is to ensure that the management of all this information complies with fair practices of the kind that are embodied in the federal Privacy Act. This is not rocket science. It is simply to ensure that people know the information about them is being collected, and why; that it will not be used for purposes other than the reason it was collected, without their consent; that it will be kept secure; and that people have a right of access to it and to correct it. That is the whole story about privacy in the information world. Often it is honoured not in the observance but in the breach.
Based on my experience as a commissioner working with government departments, I do not think there are a great many people who deliberately or maliciously strive to erode people's privacy rights. It is more of an insidious process and it often happens quite unknowingly.
Earlier, I mentioned indifference and ignorance, and I used those terms advisedly. More than once it has been my experience that administrators have embarked upon actions which, in the upshot, they have been surprised to be told have offended good privacy practice. I can certainly supply examples. Most of this activity is certainly benign in its objective but carries with it a cost which, upon more careful examination, sometimes proves to be unacceptable.
Usually, if my office finds out about it, I can fix it, but not always.
This aspect of the privacy problem has been exacerbated by the onrush of technology and its impact on the collection, use and disclosure of personal information. Every enterprise, public and private, depends upon personal information as one of its vital raw resources. This information, collected from all of us, is usually given up freely because we recognize the beneficial uses to which it will be put, but we do so on the assumption that it will not be used for unrelated purposes or disclosed to other persons without our consent.
If you go to a doctor, you reveal your symptoms. If you go to the bank for a loan, you must disclose your financial situation. If you go to an employer, you must cite your qualifications. The world would crash to a halt without such routine exchanges, but there is an element of trust involved in all of these transactions, and modern technology, unless properly hedged about with effective and legally enforceable restraints, can and sometimes does make a shambles of any notion of trust.
What, then, is the state of the law, which I think is of particular interest and relevance here? In a phrase, it is creaky and it is leaky. The federal Privacy Act, for a start, is badly in need of an update. Too much is excluded from its purview. The federal government, for example, engages in massive informational exchanges with other governments and private-sector entities. An essential precondition of all of those exchanges should be a requirement of compliance with the established privacy norms, but most of those exchanges occur unseen, without scrutiny, and certainly without the knowledge of the people who, in most cases, were the originators of the information.
There are other offensive exemptions as well. Federal investigative bodies, for example, are allowed to deny people access to their personal information, for any information that is gathered in "the enforcement of any law of Canada or a province." No such all-embracing exemption should ever be allowed unless an injury to enforcement can be demonstrated.
The very definition of personal information needs updating to take account of scientific advance, as, for example, with blood and tissue samples. Neither does the act provide an adequate system controlling what I think is the most dangerous potential misuse of government information holdings, which is in the areas of data matching, data linkages and data mining. These problems must be addressed if our national government is to stay abreast of technological change and fulfil its commitment to protect the privacy of Canadians.
In the private sector, at the moment, it is just a question of sauve qui peut. With the single exception of Quebec, where the commercial world is covered, it is an informational jungle out there, and survival of the fittest applies. Generally speaking, we have no right to know what information business holds about us, how they got it, how they use it, whether it is accurate, and how they will keep it. Some corporations increasingly regard client data as a resource which they can own and mine, use or dispose of as they wish. The more widely information is shared, the more likely it will be used to decide what services you will be offered, what benefits you may receive, even what jobs you might qualify for, all without your permission or consent or knowledge.
Equally dangerous is that these decisions may be based on faulty information, and we do not even have the legal right to correct that. One graphic example of that particular problem was revealed in a U.S. congressional study a few years ago which said that credit reports, for example - and we are all in someone's credit report somewhere - contain an average error rate of about 20 per cent. Errors of that kind can have real-life consequences in terms of the denial of credit, and denial, possibly, of employment opportunities and so forth.
I am very glad to report that, assuming the House of Commons passes it, you will soon have a bill before you which will go a considerable distance toward providing a remedy to the absence of legal privacy rights in the commercial sector. That bill, Bill C-54, will provide for the extension of federal privacy law, in the first instance, to the federally-regulated privacy sector, that is banks, communications, telecommunications, transportation, and so on - all massive holders and gatherers of information. The bill will also extend the law to the balance of the business world in the provinces, if they do not, in their own legislatures, provide equivalent protection within a three-year period.
This bill also provides an oversight mechanism involving my office. The bill is not perfect - few are - but I presume it will be improved in the legislative process. It is a long step forward and I support it. I presume I will be given the opportunity to come before members of this chamber when you are considering that bill.
It is a regrettable fact that a specific right of privacy was excluded from the Charter of Rights and Freedoms. That right is enshrined in the Universal Declaration on Human Rights, the European Covenant on Human Rights, and similar documents and covenants, and I believe it is even in the Quebec Charter of Rights. It was included in the original drafts of the Canadian Charter when they were first circulated to the provinces for discussion, and unhappily it got lost in all the horse-trading that went on from the Charter's conception on its journey through Parliament. The Supreme Court is slowly buttressing privacy through jurisprudence, but they have a long way to go.
At a minimum, inclusion of a specific privacy right would have meant much more rigorous examination of draft legislation for privacy implications, and it would have given my act, the federal Privacy Act, a more solid underpinning. As it is, the act enjoys no certain paramountcy, and its heart, the Code of Fair Information Practices, which I rattled off to you earlier, is subject to any other act of Parliament and can be easily circumvented by other departments.
Frankly, I think that anything as basic as privacy rights deserves a little better than that. We need Parliament to be especially vigilant on this issue, and I implore you to be especially tough and critical when you are asked to judge the merits of propositions in which the fate of privacy is put in the balance.
You have often heard from departmental officials, and you will hear it often in the future, that their objective is "to strike the right balance" between their wonderful program and that irritating obstacle known as privacy. This is a very depressing litany to me - I hear it almost every day - when I know that what they really mean, at least in the way that it translates to me, is, "Let us just get rid of privacy so we can get on with the business." Many more so-called balancing acts like that and there will be nothing left to balance; it will all have been chipped away.
The question that must be asked when it comes to data linkages and data mining and usage of that nature by government departments is the following: Can you make this program without the further abridgement of civil and human rights? If the answer is no, they should be sent back to the drawing board. I believe that, in the great majority of cases, the answer can be yes, if sufficient ingenuity and plain hard work are put into it, but in drafting programs, one of our troubles is that bureaucrats, and businesses too, reach too quickly for the cheap and easy solution, which is just to throw in some technology that will mix up the data and give them an answer. Any proposition that involves the trade-off of privacy rights for administrative convenience or efficiency should, in my view, face the very toughest of uphill battles before the legislatures of the land.
On the subject of parliamentary vigilance, there is one issue in particular that I wish to raise, and I will then conclude. No doubt you have heard about the proposal to create a medical information highway. This has been recommended by a special advisory council appointed by the government, and the Minister of Health has indicated his intention to proceed. What is involved here is a national health data network which will link existing and planned provincial and local networks. Putting health care information into electronic systems and then linking those systems has serious privacy implications. We all want a more efficient and effective health system but, given the fact that the raw material is the highly sensitive, personal information, medical information, of millions of Canadians, great care must be taken to ensure that no abuse is possible. What is at stake here is all that people have come to expect from the doctor-patient relationship.
The advisory council has laid great stress in its reports on the privacy dimensions that are involved, but it remains to be seen how well good intentions are translated into good deeds. I urge you, I plead with you, on that account to give this, when you get the opportunity, the most careful study. Of course, I will be anxious to contribute the help of my office.
Honourable senators, that is a very quick skim over a small part of the privacy landscape, but it is enough, I hope, to demonstrate that there is much here for legislators to ponder. When you do so, you will be animated by a resolve to ensure that efficient government is not achieved by the abridgement of precious and hard-won rights. People have a right to control their own lives, and that means the right to control their information. They are only seeking after what Mr. Justice La Forest called the heart of freedom.
We are now ready to field your questions.
The Chairman: Mr. Phillips, I remind you that you have access to translation services through your ear piece.
Senator Milne: Mr. Phillips, under your mandate, for how long after a person has died is information about the individual held by a government department or agency protected? Does a person's right to privacy change at some time after he or she has died?
Mr. Phillips: Senator, the retention schedules for keeping information are established by the public Archives of Canada. They vary a great deal depending upon the kind of information involved. A few time limits are set in the Privacy Act for certain kinds of law enforcement information, for example. There are some kinds of information that the government is allowed to exempt from disclosure for periods of 20 years.
I cannot give you a simple answer. In some cases, the retention periods are one or two years, and in other cases it is longer.
In the case of the census, to which I think you may be referring, there is an absolute prohibition on census data gathered beyond a certain date - I think it is 1901 or 1911 - that will keep it from disclosure in perpetuity.
Senator Milne: Even though the federal Privacy Act states in section 3 that information about an individual who has been dead for more than 20 years is not considered personal information for sections 7, 8, 19 and 26 of the Access to Information Act, you are still saying that the census information will be privileged forever?
In respect of the census information, in a letter dated January 11 of this year from yourself to the Chief Statistician of Canada, you referred to certain proposals to amend the Statistics Act to allow for the transfer of identifiable
census returns to the National Archives for archival and historical purposes. Your opinion on this proposal was as follows:
It will come as no surprise to you that this Privacy Commissioner has not been persuaded that it represents an acceptable balance between the preservation of individuals' privacy rights and the interests of researchers and genealogists.
When you refer to the preservation of individuals' privacy rights, for how long do you feel that the privacy right of an individual should be preserved, in spite of the fact that your mandate says 20 years after death?
Mr. Phillips: Senator, census information is gathered by Statistics Canada on a promise of confidentiality to the people who are required to give it up under penalty of law. That is a compulsory collection of information. We get, in my office, many complaints from people about the intrusive nature of the questions I mentioned merely to testify to the sensitivity of the information. It is not for me as Privacy Commissioner or, I submit, for any other individual, to decide how much privacy the people who give up that information in the expectation that it will be held confidential and secret by Statistics Canada can be expected to give up.
In my view, dead people are just as entitled to an expectation of privacy in those circumstances as anyone else. The notion that somehow or other our departure from this earth means that all the personal information about us will be open and exposed to anyone who wants to look at it thereafter is one that no Privacy Commissioner could support. I understand the interest of genealogists and others in this kind of information, but I simply make the case that there are all kinds of data banks gathered by the Government of Canada which contain a great deal of interesting personal information which I think might be of equal interest. I do not see a special case for excusing the census. In fact, I think the case for keeping that information confidential is stronger than it is with most databases because of the sensitive nature of it.
To argue that simply because you are dead you have waived all your rights, in my opinion, is not an acceptable proposition.
Senator Milne: Even though that is a proposition under which you are mandated to operate?
Mr. Phillips: The Privacy Act also says elsewhere, senator, that information shall not be disclosed without the consent of the person to whom it relates, subject to the very limited and specific exemptions that are in the act. Even if information may be disclosed after 20 years, there is still the factor of complaint. Yes, it has escaped the definition of personal information. Nevertheless, there is a good privacy principle involved here.
In the case of Statistics Canada, the promise of confidentiality is right there on the form. It establishes for the individual citizen, Statistics Canada, and the Government of Canada as a whole an element of trust. No convincing argument has been given to me that would justify, in the interests of some historians, genealogists, and other interest groups, violating or disposing of that trust.
Senator Milne: Thank you Mr. Phillips. I expect you and I will be locking horns on this again.
Senator Atkins: Welcome, Mr. Commissioner, and thank you for your presentation. I think it is incredible that you are in your seventh year, and this is the first time that you have appeared before this body.
As I recall, you were concerned when they made the amendments to the Elections Act about the permanent voters list and the misuse of that list. Do you still have those concerns, or are you satisfied that the Chief Electoral Officer is fulfilling his responsibility of protecting that list and using it only for the purposes for which it was intended?
Mr. Phillips: I will try to give a quick answer to that, senator, but I must say that I have not looked at this issue since the act was amended.
Most of the concerns that I held at the time were addressed and resolved by the Chief Electoral Officer. The only remaining one was the issue of making a list available on an annual basis, which I know was a very desirable change in some people's mind. We thought that this might expose the body politic, as it were, to an excessive amount of political proselytization, but that got a little out of my brief, to be quite frank.
Our chief concern was with the consent of voters to have their names put on the list. The Chief Electoral Officer wanted to use Revenue Canada returns, because of their current addresses, as a principal resource. We resolved that by having Revenue Canada agree to put a consent box on the tax returns, and I was pleased to see that more than 80 per cent of tax filers gave their consent to have their addresses given to the Chief Electoral Officer. There were some other changes as well, but that was the principal concern.
Senator DeWare: Mr. Commissioner, given that we have a proposed act on the books that will change Revenue Canada to the Canadian Customs Revenue Agency, headed up by an 11-member board appointed from across Canada, probably political appointments, would that change your mind as to the privacy of the use of the names?
Mr. Phillips: I must give you a conditional answer because your question is based on an assumption. I am assuming that the proposed agency will be subject to all the legislative safeguards that are now in place for Elections Canada and Revenue Canada. If that were not so, then I believe we would have something to worry about.
Senator Kinsella: It is good to have you here, Mr. Commissioner. I also should put on the record that your assistant, Mr. Delisle, is a former student of mine. Therefore, honourable senators, Mr. Delisle is well trained and was one of our lead investigators at the New Brunswick Human Rights Commission when I was chairman of that agency.
It is my understanding that, under section 72(1) of the Privacy Act, all heads of the various government agencies have an obligation to submit reports to you as to how they are complying with the act. In your report, which is the subject of this Committee of the Whole, you present a table on page 48 of the top 10 departments by complaints that you have received. According to that table, from Human Resources Development Canada there were 671 privacy complaints and 356 from Revenue Canada. The number of complaints from all the other agencies drops way down to 20, 40, 19, et cetera.
Based upon what you tell us in that table, you are in constant communication with Revenue Canada and Human Resources Development Canada. What is the problem?
Mr. Phillips: First let me say, senator, that I do not know whether we have an inside man at the Senate or you have an inside man in my office, but in any case it is very useful.
Yes, that very high number of complaints from those two departments relates to one particular issue, namely, the data match in which Revenue Canada supplied the Customs forms from returning travellers to HRDC for the purpose of matching up against unemployment insurance claimant lists, in order to find people who were out of the country while receiving benefits. That particular issue has triggered one of the largest body of complaints we have ever had on a single problem.
Senator Kinsella: Has that practice stopped?
Mr. Phillips: It has stopped. We tried very hard to negotiate a compromise arrangement with HRDC because we saw some problems in that particular data match. We could not succeed, therefore, we joined with the Department of Justice in a reference to the Federal Court to test the ministerial authority for conducting the data match. We have another case ongoing to test the validity of that kind of use of the information against the Charter of Rights. We have had a judgment from the Federal Court on the first question, which found that the minister has exceeded his authority. I believe that is a fair way to describe the outcome of the case. While they contemplate their next step, the match has been suspended.
Senator Kinsella: It seems to me, honourable senators, that where the Privacy Commissioner and a few others are officers of Parliament, and whereas under our system of governance ministerial accountability is to Parliament, this is a very important area for us to mine. That is to say, when an officer of Parliament, whether it be the Privacy Commissioner, the Official Languages Commissioner, or any other officer, is having difficulty with the agencies of government, rather than using the judicial system the parliamentary system could be used.
Would you comment on that in terms of accountability of these agencies that you have difficulty with and their accountability to Parliament, and whether or not the Privacy Commissioner could be coming to Parliament with the problems that Parliament could be addressing?
Mr. Phillips: I am pleased, Senator Kinsella, to hear that suggestion raised here. The act does provide for the commissioner, should he or she feel the problem is of sufficient importance, to make special reports to Parliament. I have always regarded that special report provision as being a nuclear bomb-type of provision to deal with something that I consider to be of an all-embracing and critical national nature.
That particular case is a classic of the kind that comes up these days, and I believe we will see more of them, of departmental officials seeking to use databases which were collected for one purpose and used for another. It comes up most often as a means of tracking cheats and that sort of thing, which we all wish to do. However, it does raise privacy questions because of the government's obligation to the people who give up all this information on certain undertakings.
We do not have, at this moment, an effective way of dealing with that, and I should like people to turn their minds to the problem. Any department, by Treasury Board policy, wishing to conduct a data match is required to bring it to the office of the Privacy Commissioner for review, and some do, if I can put it that way. I do not have the power to stop them. I only have the right to offer an opinion, usually delivered by a member of my staff because I must be very careful not to be seen to be judging any particular issue in advance against which I might subsequently receive a complaint that needs to be investigated.
I do not feel the Privacy Commissioner should be permitted to stop data matches. There are other considerations besides privacy. Equally, I do not believe that ministers, simply on the authority to manage a department, should be allowed to override issues of a privacy nature. What I am thinking of is perhaps some additional system of review.
I am very unhappy with the present situation that drove us into court. It has cost a great deal of time and expense, and I do not wish to repeat it. However, we are not Luddites in our office; we do recognize the great value that modern technology can bring to government operations by way of efficiency and savings. At the same time, bureaucrats who are under enormous pressure to improve their systems to achieve economies tend either to ignore the privacy dimension or not to take notice of it at all. We must do better than that. We need a better system.
Senator Kinsella: Mr. Commissioner, it is my understanding that section 75(1) of the Statutes of Canada establishes that the administration of the Privacy Act can be reviewed by a committee of either House but that such a review has not occurred too often.
Am I correct in my understanding?
Mr. Phillips: There was one in 1987. It was provided for in the act, which required a review after the first five years of operation.
Senator Kinsella: There has not been one for the past 12 years.
Mr. Phillips: Some very sensible recommendations were made but not adopted.
Senator Kinsella: In your opening comments you made the observation that the act needs revision, that it is leaky and creeky. You alluded to too much exclusion. You made reference to data matching and data mining and those kinds of things. Let me ask this question: Are there many models available to draw from in a revision of the current Privacy Act, including the model that exists in the Province of Quebec?
Mr. Phillips: Yes, there are a number of offices similar to mine in this country and abroad, New Zealand, and Australia, most of the countries of Western Europe.
In Canada, most of the offices in the provinces are based upon our model rather than the other way around. There are also significant differences. The provincial commissioners all have ordered powers. I am an ombudsperson and I do not want ordered powers. I am able to take an approach that allows for less confrontation, that allows me to try to negotiate solutions, which puts the focus on locating and fixing problems rather than finding blame. My relations with government departments are quite cooperative. We do get some good results.
My office was set up exclusively as a complaints investigation bureau and an audit office. We were not given a mandate to do public education, policy or research work.
The nature of the discussion we are having now indicates how limiting the act is. Without the funding to do some decent policy research, it is difficult for us to stay abreast of the swiftly changing scene. As a consequence, we have had to patch and paste to do policy research in order to have some relevance to Parliament in terms of being able to provide you with some cogent advice and keep you up to date.
I have asked the Minister of Justice to take a look at amending the act to bring it up to date. A parliamentary review would be a good thing.
Senator Grafstein: Commissioner, the last time we had an exchange was in the Standing Senate Committee on Legal and Constitutional Affairs. Our committee worked very closely with you in order to ensure that the proposed DNA data bank legislation was more sensitive to privacy concerns than might otherwise have been the case. We hope that the output of that bill will justify our efforts in that regard. In that case, our committee insisted that there be an independent body and that the commissioner be involved in order to sustain and maintain privacy.
I was listening to your opening comments about the need for a constitutional amendment to ensure the right of privacy. I could not help but think about how that situation might have changed events in the United States if they had adopted the right to privacy in the last year or so. Things are ever fresh in constitutional matters. Who knows, we may adopt that principle.
I am interested in your mandate with respect to reviewing legislation. Legislation pours through this and the other place. Many legislative matters impinge on privacy. Do you consider one of your mandates to review all legislation for sensitivity to privacy matters?
Mr. Phillips: If we did not look at legislation, we would not know what is going on. In that respect, we would be failing in our duty to the chamber and the other place. We do our best, and that is all I can say. I have very limited resources for that purpose. I have one very competent officer in my office who takes care of that work as one of her many duties. We do not have adequate resources to thoroughly canvass all of the legislative propositions.
Funding has been a severe problem for our office. I know every official coming before a parliamentary body drags out this crying towel. However, ours is a special case. I am almost embarrassed to tell you what our operational funding has fallen to as a consequence of historic underfunding complicated by government reductions. This year our allocation is approximately $100,000. Let me tell you how this affects what is essentially a complaints investigation office.
The credibility of my office and the investigative process depends to a significant extent on the ability of my investigators to go on site where these complaints occur; that is frequently out of town. It would not take my office many investigations to exhaust a budget of that size.
Senator Grafstein: I understand what you are saying. That was not the thrust of my question. The thrust of my question was: Do you consider part of your mandate to review draft legislation before it is passed?
I try to read all the legislation that comes before this body, not in detail, but to try to grasp some of the central principles. It is one of the jobs of all legislators. Do you consider legislative review to be part of your mandate in order to raise some red flags to indicate a problem or possible problem? Do you consider your mandate sufficient to survey or verify privacy issues in all legislation?
Mr. Phillips: The answer to that is in the affirmative if, by "mandate," you mean our responsibility. This is not specifically mentioned in the statute as one of the things that we are instructed by Parliament to do. However, there are many other things that are not mentioned either. We have a responsibility to do our best in that respect.
However, we need more funds to do our jobs effectively.
Senator Grafstein: Yesterday in the Foreign Affairs Committee we were reviewing Bill S-22. This is proposed legislation authorizing preclearance of travellers and goods in Canada for entry into the United States.
In that bill is a provision that allows American officers on Canadian soil to obtain reams of specified information about travellers, all with a view to offsetting difficult issues. That information goes into a data bank and a preclearance officer is obliged under the statute, if they do not use the information, to destroy it within 24 hours:
...unless the information is reasonably required for the administration or enforcement of Canadian law or preclearance laws.
Essentially, it is their choice as to whether they retain that information. That is a massive amount of personal information. We are wrestling with this subject in committee. It came to our attention as we reviewed the bill.
I cite this as a specific example as to whether or not your office considers it part of its mandate to raise red flags in order to provide parliamentarians with some advice on matters such as this.
When you consider the liability section, there is a limitation on liability against those preclearance officers even if they fail or omit to do anything under the proposed legislation from a civil aspect.
It is a major concern. More than 50 million trips are made across the border every year. Massive amounts of our information exist in American computers. I raise that as a question.
Mr. Phillips: Senator, we are looking at that particular bill now, even as we speak. I expect we will have something to say about it very shortly. We have not had it long, just a matter of a few days. Some of the implications were immediately apparent, but we are looking at it now and will certainly be prepared to offer some observations on the subject.
You mentioned the DNA bill. Let me compliment the members of the Senate committee who handled that particular issue. The end result was a wonderful example of what happens when a parliamentary committee digs in and knows its stuff.
Senator Grafstein: You are referring to a Senate parliamentary committee.
Mr. Phillips: Yes, I refer to a Senate parliamentary committee. The bill was greatly improved in the process. We had a very serious concern about some aspects of that bill and they have been pretty much resolved.
Regarding the DNA bill, my point is that we came to the Senate committee because we were doing precisely what you were discussing, which is monitoring legislation.
Senator Grafstein: With respect to the new computers in telephony, particularly those computers which measure the quantum of telephone use by users, those telephone numbers are now being monitored. There are reams and reams of these records. Senators will note that their telephone bills include reams of numbers, all of which are recorded in a computer. We all have two or three telephones and we are getting these long lists.
It struck me that the amount of information in such a federally-regulated industry puts enormous power on issues of privacy into the hands of an authority or a public corporation without any survey on what they do with that information or when they drop it.
I have not looked into this question. Has there been any thought on your part about that type of information? Can those long tracks of private information be curtailed, such as requiring that, after a year, the computer records be wiped clean? Have you given any thought to that? Is that an issue for you?
Mr. Phillips: Yes, of course, it is an issue. Those are typical of the kinds of mass information holdings that private corporations can collect. If it is not subject to some reasonable privacy standards, it can be abused and is being abused. We can give you terrible examples of information that has been collected and wrongly used.
I am assuming that if Bill C-54 passes this chamber and Parliament, we will go a long way toward getting a handle on that kind of problem, because Bell Canada's information management practices then would come within the purview of the office of the Privacy Commissioner. They would be required to subscribe to a legally established standard of information management, which is set out in the bill, principally guided by the Canadian Standards Association Model Code of Information Practice which was devised, in part, by private sector people. That would become the law and they would have to live with it.
The notion, therefore, that all of that telephone numerical information - which provides all sorts of information, including a very good guide to the interests of the callers and their locations at any given time - would be protected by a statute. That is the whole argument on behalf of legislating legal privacy rights.
Senator Di Nino: Welcome, commissioner. As a former member of the press corps, I am sure you must be very pleased that when you come to the Senate, you get an elevated position.
Mr. Commissioner, you and others have raised concerns about the privacy of information held by financial institutions. As you undoubtedly know, they have a privacy code to which all financial institutions claim to adhere. It has been suggested that if the financial institutions were really serious about the privacy of information, they would use your office either as an appeal mechanism or simply as their overall privacy adjudicator.
Could you give me some comments on that, and perhaps a bit of a report card on how the financial institutions are behaving themselves, or otherwise, as well as some advice or suggestions on how we should deal with that issue?
Mr. Phillips: To answer the last question first, I cannot give you any kind of informed judgment on the behaviour of financial institutions in this country. I have only anecdotal evidence. The reason is, of course, that at this moment I have no jurisdiction.
We do get complaints from people around the country. We can do very little for them except offer them comfort and sympathy because I have no right to go through the doors of a bank to ask any questions.
The Canadian Bankers Association and some of the individual chartered banks have developed good voluntary codes of practice. If they lived up to those codes in spirit and letter, that would probably be sufficient. I do not think that is enough in this day and age and I have no notion whether they live up to them or not.
In any case, we have reached the stage where the collection and use of personal information is now one of the principal activities in the business and governmental world. People are entitled to have legal rights respecting the use of that information.
We have a bill coming before a Commons committee now which will do exactly that. I have not yet heard the Canadian Bankers Association, as they have not appeared before the committee yet. However, it is my understanding that the Canadian banks feel that the powers given to the Privacy Commissioner in that bill are excessive and unnecessary. I am sorry that they are taking that position. The consumer advocates, on the other hand, feel that the powers given to the commissioner under that bill are lamentably inadequate. I guess the bill strikes a pretty good half-way position.
It is an act of some courage and imagination that the government has adopted this position. It will not get an easy ride. The bill needs some improvement and there are some powerful interests which do not like the idea, but the time has long since come for the acceptance in this country of legally established privacy rights.
Such laws have existed in most of Western Europe now for several decades. They are well ahead of us. Australia is now moving toward it. New Zealand has had it for some time. There are recently independent countries in Eastern Europe which were very quick to move toward data protection laws of the kind that we are talking about here.
Those people recognized from their own unhappy experiences the dangers that are involved when the state or corporate interests can take personal information and use it in any way they want. Our time is long overdue and I am glad to see it is at last happening.
Senator Di Nino: That pretty well ensures you will return to the committee structure - I am not sure which one it will be - of the Senate in the not too distant future because obviously your comments have hit a chord today, particularly when you equate privacy with freedom. That was something to which we all paid attention.
I have a practical question dealing with some of the anecdotal evidence of which you spoke in relation to financial institutions abusing or misusing data. Have you heard of problems existing in the misuse or abuse of the data financial institutions have when it comes to cross-selling? To be more specific, are the banks or other financial institutions using the data they have to sell services in the insurance field or mutual fund field, something which was never intended when the original service was entered into?
Mr. Phillips: I think you can get a more complete and accurate answer to that by examining the report of the Canadian Bankers Association ombudsman, which was issued a few days ago. I have not gone over it in detail, but tied selling is one of the principal problems with which he has to deal, and those problems arise from bank clients. I cannot give you any more than fragmentary views on the subject.
If you have friends in the investment dealer community, they may tell you that the bank that owns them does not have anyone in the bank sending account information. However, it is hardly necessary if two people meet for lunch and one says to the other, "You should get in touch with Joe Smith, who blew into town the other day from Vancouver." If a banker says that to an investment dealer, it conveys something. As far as I know, there is nothing unlawful about the practice. However, I would not want to be in the position of trying to pass any kind of judgment, as I do not have enough information.
Senator Di Nino: I appreciate that, and we will look forward to seeing you when we deal with Bill C-54.
Senator Oliver: Mr. Commissioner, on two or three occasions when you have appeared before committees on which I have been sitting, we have discussed the issue of privacy in relation to medical records - that is, patient-doctor records and patients' hospital records and insurance records, such as the details of a person's private health concerns contained in an insurance policy. One of the things that will never leave my mind was evidence before one of our committees about where some Canadian insurance health particulars are actually stored and how easily accessible they are to the general public. I am hoping you can comment on that to let us know whether that problem has been cured.
My specific question today deals with computer storage of some of these records and what will be done with them. Do you think Bill C-54 will be a big enough and good enough remedy to ensure that privacy of our medical and insurance records is contained?
Mr. Phillips: The answer to the question, Senator Oliver, is maybe.
A good deal of personal information is gathered in Canada in the course of all kinds of enterprises and activities, health being one of them, which is processed in the United States.
Senator Oliver: In Hartford, Connecticut?
Mr. Phillips: I believe the medical insurance bureau to which you refer is based in Boston. I think that is what you are talking about.
Yes, insurance companies routinely file from Canada to the United States a good deal of information they have gathered from their policyholders. That information, once it is out of the hands and over the border, is essentially beyond the control of any Canadian law. I do not think Bill C-54 really deals with that problem. It does deal with the information, though, as long as it is inside Canada. It may be that the problem can be approached through the disclosure provisions of the code. I am sorry, but I will defer a more complete answer to that question.
Senator Oliver: What happens in Canada when marketers marketing health products have access to some of our private insurance health records, records from hospitals and patient-doctor records? Will Bill C-54 be able to curtail that use when the information is stored in various computer systems and databanks?
Mr. Phillips: No, I do not think so. It could.
Mr. P. Julien Delisle, Executive Director, Office of the Privacy Commissioner of Canada: Honourable senators, Bill C-54 deals essentially with commercial transactions. If it is a doctor-patient relationship, which is not part of any commercial transaction, it falls outside the ambit of the bill.
Senator Oliver: What if someone has the data and they suddenly start to commercially market a particular health product based upon information they gained and gleaned from reading private health records, either from a hospital, a patient or an insurance policy?
Mr. Delisle: Then it may be subject to Bill C-54.
Senator Di Nino: It may be?
Mr. Delisle: Yes, but we would have to look at the specific circumstances.
Right now the private sector is largely unregulated anyway, so there is no legal protection with respect to those issues.
Mr. Phillips: One of the problems with the bill in its present form, Senator Oliver, is that it says it covers commercial activity. However, commercial activity is not sufficiently and clearly defined. Does it cover things, for example, such as non-profit or charitable organizations? In the case of a charitable organization, would it cover only that part of its activities in which they hired people to raise funds and paid them? What effect would that have on any records created as a consequence? There are some complications and ambiguities involved here that we must sort out.
Professional associations, such as bar associations and medical associations, are not specifically mentioned. Will they be covered, "yes" or "no"? If one sees a lawyer to get advice and a bill is sent, is that a commercial activity, or is it excluded because it is generated by a person involved in a professional activity not covered by the act? Again, we have to sort a few of these things out. I hope by the time we get back here before this chamber, we will have answers to those questions.
When I said maybe, I would lean more at this stage to "probably yes." When we look at what you are talking about, there is certainly bound to be a commercial activity involved there somewhere that would require the consent of the people whose information is involved before it could be used.
Senator Cools: Mr. Chairman, how long will we be? We do have other business to deal with today. Did we set a time frame?
Senator Carstairs: No, we did not.
Senator Cools: Welcome, Mr. Commissioner. You stated that you are an officer of Parliament, and most of us know exactly what that means. Your particular position as an officer of Parliament has a different history, say, from the electoral commissioner, who essentially took over the tasks the Speaker and the clerks of the House of Commons used to perform in respect of elections. I know that you are an officer of Parliament, but how does that affect the running of your office in a day-to-day manner? In other words, what do you do daily that other office holders who are not officers of Parliament do not do, other than giving one report to Parliament annually?
Mr. Phillips: We investigate complaints against government departments daily. We receive an average of 2,000 complaints annually about various alleged abuses of personal information by people in Canada. We are required by the statute to investigate them.
The process of appointment, senator, and the process of accountability by which I report only to the Speakers and to the members of both Houses is to make absolutely sure that there can be no perceived or actual conflict of interest in the operation of my office. I am not subject to a direction by any department of government. That is the principal difference between what I do and what, say, a deputy minister in a line department does. He is under the control of the minister and the executive of the day; I am not. I am under your control.
Senator Cools: That is quite true, but the chairman of the National Parole Board, as chairman of such a tribunal, also has similar powers to do certain things. Those types of positions are not deemed to be for officers of Parliament. I am trying to get at the relationship of the officers of Parliament to Parliament, and the impact and the influence that that relationship has on your day-to-day operations.
Mr. Phillips: I do not know that I can answer it any better than I already have. The National Parole Board is in the business of examining the suitability of people for parole. I am in the business of investigating the National Parole Board from time to time and have done so. It would be a very awkward situation, for example, if my office and the office of the Solicitor General, which is the department to which the parole board reports, were both run by the same minister. It would be impossible to have a credible complaint investigation agency if it was under the thumb of a departmental minister.
We have a few problems with it as it is because in the financial area the Department of Justice - because privacy is under the justice envelope - is required, under the Financial Administration Act, to sign off on our Treasury Board funding submissions. This could be seen by some as a possible source of perceived conflict. However, it does not bother me. The Department of Justice has never in any way done anything other than add their pro forma signature to our submissions. They are mildly uncomfortable with this arrangement, too, but I do not think it is a serious problem.
I do not know what more I can tell you. The officer of Parliament works for Parliament. The National Parole Board works for the government. That is the difference.
Senator Cools: I have another question which is a bit more difficult and quite speculative. It may be awkward or difficult for you to answer, and I would understand that.
You have had extensive experience in privacy issues, and a life-long experience as a journalist, so you have unique experience. A couple of weeks ago, many of us were shocked by the depictions of Minister Sheila Copps in Hustler magazine. It bothered a lot of us here. It bothered Senator Kinsella and myself a great deal. I looked at the depictions. I examined the matter carefully.
My question for you is: Is there an issue of privacy there? If you look at those depictions, there is nothing "unlawful" about them. They are not perpetrating a crime. It certainly is not an issue of libel or slander because there is no slander, but what is it? Where does a minister or a member of Parliament look for protection in legislation against that sort of thing?
You began by quoting from Mr. Justice La Forest who said that privacy is at the heart of liberty, and so on. Have you given any thought as to whether or not there is a privacy issue there?
Mr. Phillips: There is certainly a privacy issue, absolutely. There is a privacy issue involved every time any individual's personal information is used for publication purposes. However, whether it is for or against the law and whether it is right or wrong are additional questions.
I have views on a good deal of these things. If you or anyone else can propose a system for correcting the abuses of bad taste of that nature that occur in public that will pass muster with the Charter of Rights and Freedoms - in particular, the free press - I would like to hear about it.
I share with many people some dismay at what I consider to be a decline in the standards of good taste in some areas of journalism.
Senator Murray: It is more than a question of good taste.
The Chairman: Order, please!
Senator Cools: I would be happy to defer to Senator Murray for a second.
The Chairman: Senator Murray, with Senator Cools' permission, you may ask a supplementary question.
Senator Murray: I was about to come to a question along these lines, but it was not specifically related to Minister Copps.
My question is: When will there be some protection for Canadians against invasion of their privacy by the media? I have never been victimized myself - I hasten to say that - but I know quite a few people who have in politics and in other areas where they achieved some degree of prominence. All of a sudden, matters that have to do with their personal, private or family lives are retailed in the media. Those are invasions of privacy. Why can there not be some protection for Canadians?
Mr. Phillips: Senator Murray, when you are referring to public media, the issue is: How much invasion of privacy is justifiable? We could get into an interesting and extended discussion on this point. How much expectation of privacy and what kinds are people in public life entitled to claim? What is their reasonable expectation of privacy? These are not simple questions. Finding a legislative answer to them would be extraordinarily difficult.
The real problem with the media these days is partly induced by the enormous competitive pressures of television, inadequate resources for proper editing, and inadequate training of journalists in areas dealing with ethics. Let me cite one example of the kind of thing I am thinking about. When I started in the newspaper business forty years ago, my first day on the job, as I was rolling the paper into the typewriter carriage to write an obit, the managing editor of this small newspaper came to me and said, "What are you doing?" I said, "I am about to write an obituary." "Good," he said. "Just remember that every time you put someone's name on a piece of paper for public distribution you are accepting some responsibility for that person's reputation thereafter, dead or alive." I have tried to remember that. I think most of the reporters and journalists of my generation did try to measure their writings against that kind of standard. I am not sure that the same kind of attention is paid to those issues when young journalists start out in their careers these days.
Having been around here a long time - and, people who have been here for similar periods of time would probably agree with me - it is worse now than it used to be. Maybe the answer is in better tort law but I do not think it is to be found in trying to establish "what is" and "what is not" in a legislative framework - that is, a whole set of areas that you cannot report upon. It is very difficult. I must make the claim on behalf of my former occupation, sometimes, to know where to draw the line.
There are many people, particularly those in public life, who are the principal targets of this kind of journalism and who welcome a lot of public attention. The Princess Diana case is an interesting one from that perspective. Many of the people involved complained bitterly and incessantly about the horrendous stories that were written in the London papers, and the British Parliament was on the verge of passing restrictive legislation when it was discovered that these people were complicit and had encouraged the transmission of a lot of this very squalid and sordid material to the newspapers.
We have to be a bit careful about this kind of thing. The answer, in my view, is to be found inside the industry itself, I hope.
Senator Taylor: I was introduced to the commissioner many years ago through the medium of television. He has lost none of his persuasiveness. If he were ever to enter politics, he could be dangerous.
I have been a friend, for some time, of your assistant. I always wondered where some of his views came from, and now that Senator Kinsella has admitted to having a hand in shaping those views, perhaps I will be able to trace it back to that.
My question will be fairly short but perhaps a bit off the wall. Is the government infringing on my privacy by asking the sex of my partner when preparing pension benefits? What business is it of the government to know whether my partner is male, female, or maybe an it?
Mr. Phillips: I can only answer the first question. Yes, it is an intrusion in your privacy, absolutely, because they are asking you to give up what you consider to be personal information, and which my aunt would consider personal information, too, I think.
Whether it is justifiable in the circumstances, whether it strikes that famous balance that bureaucrats are always talking about when they want to strip you of your privacy, is the question. I could only give you my answer as a Privacy Commissioner if I knew all the circumstances.
Was the information absolutely necessary to properly administer the program in question? Could they do so just as well without that information? To what uses will the information be put? What security is attached thereto? Those are the questions that concern a Privacy Commissioner.
We start from the position that any disclosure of your personal information constitutes a subtraction from your privacy, if adequate controls do not surround the transaction of the information.
Yes, there is a loss of privacy involved. Is it right or wrong? I cannot answer that question until I know more.
Senator Andreychuk: Mr. Phillips, I had the benefit of listening to your views with regard to the DNA bill and was much taken by your concern for your proposition that you must put forward a strong position for privacy. I also liked the fact that you said that privacy rights are not absolute, that they have to be balanced against other rights. Consequently, if I understood your reasoning during our deliberations on the DNA bill, we could have had more privacy but we opted for a position of understanding the costs that that might bring if we used individual profiles rather than clustering profiles. You also understood that the profiles may change as our information changes. The way that I look at rights, we are constantly balancing one right against another.
I want to go back to Senator Milne's discussion about the census. While this was not legislated, people gave information on the understanding that there would be confidence under the census. Let us say 100 years pass. In my case, there will be no children, but who knows where my extended family will be in 100 years. It seems to me that, in a democracy, information collected by the government and put under seal may still need some examination at some later date, to determine the accuracy of the information and to determine whether it was used properly, or at all. In a democracy, we can learn from our history. You might wish to comment on that.
I also wondered if you would be in favour of the government entering into a public debate to reopen those census records, as they have in Australia and other countries, perhaps after 90, 100, or 150 years. Who knows where the breaking point should be?
I know you considered this issue from the perspective of historical research and genealogical research. I am looking at it from the viewpoint of fundamental democratic rights, such as the right to a double-check on a government system. Sometimes that double-check is immediate, in some cases fulfilled by the Senate; but at other times, time needs to pass and we need to reflect. I think of the 1911 census, when so much information was taken. Now there is the issue of internment of certain immigrant classes. We know by access to some of that information, through their kin, that it was false and was used by other government departments.
Would you therefore still absolutely say "no" to access to that census data, or do you believe that this broader debate should take place and that the government should encourage that?
Mr. Phillips: I would certainly agree that there should be a very broad, extended, public debate before the terms on which census data collected from Canadians is altered. I would agree with you that far, senator. I say that based upon my own experience of the extreme sensitivity with which a great many Canadians consider this census data. There have been two censuses since I started in this office, and each has generated an enormous number of complaints to my office relative to our normal flow of traffic. Generally, they turn on the subject of the intrusiveness of the questions.
It would be a pretty poor privacy commissioner, senator, who would easily yield to a plea for access to that kind of information by genealogists and historians.
I might be more easily persuaded if that were the only or most important source of information for historical research, but, clearly, it is not. I have seen some of the work that has been assisted by access to census data in other places, so I do not deny its value.
We have a system here in which Statistics Canada is charged, by law, not to disclose that information to anyone. I think that is the safe way.
Who among us really is ever in a position to make the decision about disclosure of that kind of information on behalf of someone else? That is what is proposed here. There are millions of people who have given up that information. All of them did so on the assumption that it would be protected from disclosure forever. Many of those people may very well believe that it is essential that, long after they are dead, that information be kept sacrosanct.
Let me give you a parallel experience, although it is not a precise analogy. There were many servicemen in Canada who were the fathers of children born overseas during the war. They came back to Canada, picked up their lives, got married, and had more children. Now there is a great appetite among people in Britain to know more about their biological fathers. They have come to Canada as a group and are individually asking the Department of Veterans Affairs and public archives to track these people down so that they can get in touch with them.
One can understand the anguish that lies behind some of those requests. They came to us and asked for our view. It was my view that unless these former servicemen consented, their privacy should be protected. I know that hurt people. I can tell you, however, that we took the trouble to get in touch with them ourselves, or public archives did, and we asked, "Do you wish to have your whereabouts disclosed to your children or grandchildren in Britain?" The answer in the overwhelming majority of cases was "no."
This is a case where one could identify a benefit to the people who wanted to breach someone's privacy. If there had not been a requirement of consent involved here, the institution might well have done so. We cannot put ourselves in the position of making decisions on behalf of other people as to how much privacy they want. We can only go by these well-tested principles that apply to Statistics Canada's informational practices. There is a law to fortify it. There is a reason for that law. It is there because Canadians are touchy about this census data, dead or alive. We must be careful before we monkey around with that. I certainly agree with you that if there is anything like that being contemplated, there should be the broadest kind of public debate.
Senator Andreychuk: One of the comments that has been made about the last number of censuses is that information gathering has gone way beyond what a census should gather and has become a ruse for getting other information in a quick and easy way.
We do have examples where, in the public interest, we have breached previous confidentiality, and that is in adoptions. We chose to reopen those cases for the benefit of children who have diseases, et cetera, and need to know their biological contacts. It seems to me that a debate in the public interest would be the right way to go.
Mr. Phillips: Senator, different people will think different things about these issues. It is a good debate.
With respect to the types of questions being asked by the census, yes, they are certainly asking for interesting kinds of information. If you have problems with that, I am not really the person to answer. The Chief Statistician will probably give you the answer that he has given me, which is that there is a defined, urgent public need for the kinds of information that is sought on the census.
On behalf of the process, I will say that it is very exhaustive. Committees of experts from all over the place consider all these things as they winnow down the list of census questions. No doubt they are extremely intrusive, and there is a substantial loss of privacy involved which, in my opinion, mitigates even further in favour of keeping our bond with the Canadian public.
Senator Andreychuk: Bill C-54 will put a lot of responsibility on the Privacy Commissioner, and certainly the resources will be needed if you are to be effective. I think it was more than a crying towel; I think it was an honest piece of information that you are giving the senators before we get to Bill C-54.
Can you comment on the issue of encryption and the information that you are receiving and will be looking at from the business community? Once the information is in the hands of someone else, whether it is the police or the Privacy Commissioner, those people will go offshore and run their businesses. Not only is it a question of us being involved in the loop on international business, but if we are to fight international crime, we need to break into the encryption for the police.
Should the police be monitoring the encryption systems and the financial institutions, or should the Privacy Commissioner be doing that? Do you feel there is a need for more powers for the RCMP in that respect, or do you believe there is a role for both your office and the RCMP?
Mr. Phillips: I do not believe the police should monitor anyone's communications unless they have a proper warrant to do it.
Senator Andreychuk: I am saying they would do it under the legislation.
Mr. Phillips: I do not think legislation that would permit any other kind of surveillance should be approved by a democratic legislature anywhere.
My view of encryption at this stage of the game is as follows: Electronic commerce will be greatly facilitated by the more widespread adoption of encryption. It is happening all over the place. I do not favour what is called the public key escrow system in which people who are using encryption systems have to give them all up and have them stored by some third party so that the police can get them whenever they want.
If I can use a more ancient sort of analogy, it is like saying you must give the police the key to your mailbox. Codes have been used in commercial and personal traffic for centuries. There has never been any suggestion before this encryption debate began that somehow or other the police had to be given keys to all these codes. I am not at all persuaded that the possession of these keys would have any significant impact on criminal enforcement. If anything, it would probably drive the criminally inclined to find some other means of communication. This subject will be around with us for a while, but that is my position as of now.
As for the banks and their arguments that the business will go offshore, I would like to know where they would go. I think you should be sceptical of these arguments. The chartered banks of Canada, by and large, have been operating in Europe for decades where they have much more stringent data protection laws than is proposed before the Parliament of Canada, and I have never heard them complain once that they could not do business there.
Senator DeWare: I should like to follow up, Mr. Phillips, on something Senator Taylor said, but my question would be in connection with Bill C-68, the Firearms Act. When they presented that act, I imagine you looked at the data that they were asking for to register a firearm or to buy a firearm. It is not only your name, age and address, your criminal history, but you must provide medical information, as well as psychological information, emotional information, loss of job, failure in school, marital status, which is not allowed in many cases, and other significant relationships.
You must have had some input into that and asked them how they would control this information.
Mr. Phillips: You put your finger on the issue of how to control the information. We have had many complaints about these forms, senator. People were thinking that the questions put are altogether too nosy and intrusive.
We have taken that issue up with the firearms people. They have been able to make a fairly decent case, if I can put it that way, that all those questions, which have been psychologically approved, are necessary to make a considered and informed judgment as to whether the person applying for the possession of the firearm is likely to indulge in violent behaviour or misuse of a firearm. You have to make what you will of that. There is no doubt that they are intrusive questions.
The more relevant question for my office is how that information will be managed and controlled. I must tell you that we are not terribly happy. We have been working with the people charged with bringing this gun registration system into effect. We have been looking at the forms. We raised a number of questions. I will not go into them in great detail here. We suggested a number of changes to improve the degree to which the confidentiality, security, and privacy of the information could be protected. We urged them to be put into the bill. They told us they would be put into the regulations. We did not see them in the regulations. They told us they would be taken care of in the forms. The forms are now out. We were not shown the forms before they were published, and they have not acted on many of the things we suggested. We are not happy with this situation. We think that it is altogether too loose, that there are too many areas in which the information can leak to unauthorized places, and that it should be fixed.
The Chairman: Honourable senators, I have exhausted the list of questioners.
All that remains, Mr. Commissioner, is for me to thank you for responding to our invitation and giving direct answers to our questions. Your remarks clarified for us the role you will be playing and they will certainly help us in our future deliberations. Mr. Philips and Mr. Delisle, we offer you our thanks.
Senator Kinsella: Honourable senators, I think you will agree that the Committee of the Whole has concluded its deliberations.
The Chairman: Honourable senators, you have heard Senator Kinsella's proposal. Do you agree?
Hon. Senators: Agreed.