Bill C-2, An Act to Amend the Radiocommunication Act

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House of Commons Standing Committee on Industry, Science and Technology

May 6, 2004
Ottawa, Ontario

Heather Black
Assistant Privacy Commissioner of Canada

(Check against delivery)

Good morning.

I very much appreciate this opportunity to appear before you today to comment on Bill C-2, An Act to Amend the Radiocommunication Act.

We understand that this legislation is controversial for a number of reasons and we are aware that the Committee has heard from witnesses who have expressed strongly opposing views on the Bill and its objectives.

I would like to be very clear at the outset concerning our interest in Bill C-2 and the context of our comments. Our interest in the Bill is limited to the question of whether or not the proposed amendments will, if passed, have an impact on the privacy rights of Canadians. In particular, we have focussed on section 5, the proposed amendments dealing with the powers of inspectors.

We have reviewed these amendments carefully and we do not believe that they significantly increase the powers of inspectors appointed under the Act in a manner that adversely affects privacy rights.

We have also reviewed recent jurisprudence dealing with administrative searches. Our reading of these cases suggests that the Charter sets a reasonableness standard for administrative searches. This standard is met when the search powers are proportional to the aims served by the legislation and individuals subject to the regulatory regime are or should be familiar with the provisions.

With respect to the powers of inspectors, we note that Section 8(2) of the Act as it is currently drafted states that an inspector may not enter a dwelling-house without the consent of its occupant except (a) with a warrant or (b) where there are exigent circumstances which make it impractical for the inspector to acquire a warrant. We appreciate that circumstances may arise when an inspector, for public safety or related reasons, might need to use this authority to inspect radio equipment in a dwelling that is causing interference or otherwise disrupting radio communications.

However, we hope and expect that this power would not be used to enter a dwelling place for the purpose of identifying individuals who are receiving unauthorized satellite signals. On this point, we are encouraged that the witnesses from Industry Canada who appeared before this Committee emphasized that the enforcement focus will be on dealers and not on individual users.

I should add that information collected by Industry Canada and its inspectors is subject to the Privacy Act. In addition, the Radiocommunication Act states that in exercising his or her powers the Minister may have regard to the objectives set out in section 7 of the Telecommunications Act. One of the objectives set out in section 7 is "to contribute to the protection of the privacy of persons."

The last point I would like to make it that neither Bill C-2 nor the Radiocommunication Act directly addresses the duties of inspectors except in very general terms. The Act gives inspectors the authority to do certain things that are "necessary for the purpose of performing any duty of an inspector." However, one has to wonder how this requirement can be satisfied when there are no actual duties of the inspector set out. The Act gives the Governor in Council the authority to issue regulations "prescribing the eligibility and qualifications of persons who may be appointed as inspectors, and the duties of inspectors." This has not been done.

Setting out the duties of the inspectors might prove useful in terms of clarifying the authority of inspectors.

Thank you.

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