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Bill S-21, the Privacy Rights Charter

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Testimony to the Standing Senate Committee on Social Affairs, Science and Technology

September 20, 2001
Ottawa, Ontario

George Radwanski
Privacy Commissioner of Canada

(Check Against Delivery)

Following is the testimony given by the Privacy Commissioner of Canada, George Radwanski, concerning Bill S-21, the Privacy Rights Charter, to the Standing Senate Committee on Social Affairs, Science and Technology, on September 20, 2001:

This is an important time to have a piece of legislation before Parliament that affirms or refocuses our attention on the importance of privacy. Certainly, all of us in this room will agree that privacy is a fundamental human right that is especially important to remember at such exceptional times as we are facing now.

There is no question that the kind of security threats that we face now does raise new issues about the balance between the need for privacy and the need for information. Indeed, that is the entire purpose and thrust of the privacy laws we have in Canada -the Privacy Act -and now the new private sector law (the Personal Information Protection and Electronic Documents Act or PIPED Act).

It is a good balance. I believe that the Privacy Act is particularly pertinent, of course, to the activities of government in preserving security, and is a flexible instrument and a good one that makes it possible to maintain that balance, while providing all the scope needed to protect public safety.

I believe that the challenge, of course, is to take all the measures that are demonstrably necessary to protect public safety against the new, or at least newly discernible, threats that we face.

However, it must be done on the basis of privacy rights and principles, which is to say that any infringement on privacy and any further limitation must be demonstrably necessary. It must demonstrably be the only appropriate way to achieve the necessary end -that there is no equally or satisfactorily effective means of achieving the same end through less privacy-invasive measures, and so forth.

These principles are already well enshrined in our law, and, certainly, I can tell you that, speaking for myself as Privacy Commissioner and an Officer of Parliament, I have no intention of being an obstacle to protecting the public. Equally, I have no intention of being a rubber stamp or a gateway for privacy-invasive measures that would not be demonstrably necessary.

In that context, the intent of Senator (Sheila) Finestone's Bill S-21, as I understand it, is an important one. That intent, as I understand it, is to fill the gap that exists because there is no framework for testing existing or future laws of Canada against privacy rights. That is one significant gap in the Privacy Act. It does not have paramountcy, which means that if what is being done that is invasive of privacy is done on the authority of a law of Canada, then the Privacy Commissioner has no formal recourse in the sense that it cannot be a violation of the Privacy Act.

That is not to say that the Privacy Commissioner is without resources in such a circumstance. The mail-opening to which you referred earlier, Senator, I found in my original finding was technically entirely in accordance with all of the relevant legislation. Nevertheless, I was able, in due course, to persuade the Minister of National Revenue that, while it was technically in compliance with the Privacy Act as it was being carried out, it was a violation of privacy rights. A solution was found that is much more respectful of those rights. The situation is not totally bleak.

However, I certainly would support the thrust of Senator Finestone's bill, which is to enshrine in our laws, a law that is paramount in stating that existing or future legislation must meet the test respecting privacy rights.

That would be an important step forward. That is quite a reasonable one, given that Canada is a signatory to instruments, including the United Nations Declaration of Human Rights that enshrine privacy as a fundamental human right.

Senator Finestone, I will go on to say, is a great friend of privacy in this country and who, particularly as I was starting in my duties, was a very valued source of counsel to me and a valued and respected supporter.

All that being said, it pains me greatly to have to tell you that as Privacy Commissioner and as an Officer of Parliament, I must oppose the current bill as it is before us in the strongest possible terms. The difficulty I have is the bill goes beyond providing a kind of a quasi-constitutional test to ensure that laws are in accordance with privacy rights. Instead, this legislation comports itself as if there were no privacy legislation in place, as if we did not have a Privacy Act, which is a good piece of law, and as if we did not have the new Bill C-6, the private sector act, which is also a good piece of law.

My concern is primarily with clauses four, five and eight, which together have the effect of saying that an individual who feels that his or her privacy right is being violated, whether it be by the government or by a private sector entity under federal jurisdiction, can litigate that right in court. The difficulty is that we already have a process for dealing with complaints about individual violations of privacy rights, and that is a complaint to the Privacy Commissioner.

I have two laws that give me considerable and effective powers. I have an excellent staff of investigators. I have the best privacy experts in the country in my policy and research team and, without a doubt, the finest privacy lawyers as my legal advisers. To complain to me, to my office, does not cost a penny and every complaint is given full and careful consideration.

This law, as proposed, would create a parallel track. An individual or a corporation or an entity that chose to do so could go to court rather than complaining to the Privacy Commissioner. That is not simply spreading the opportunities to enforce privacy rights. That is creating a total mess because where the Privacy Act and Bill C-6 are detailed and specific, based on extensive analysis, consultation, debate and so forth, Senator Finestone's charter or bill, by definition, by its nature, is very broad and makes general, sweeping statements.

However, you can have a circumstance where, to the extent that individuals or organizations choose to go to court on that basis, suddenly alongside a clear and explicit set of privacy laws, duly passed and debated by Parliament, would be a parallel set of rulings, findings by judges of different courts, dealing with different complaints. The nature of the decision in each case may depend largely upon the predilections, judgements or attitudes of a given judge, to say nothing of the quality of the lawyers who bring the case or who take opposing sides.

What you would have is a parallel situation that could be a very dangerous mishmash. First of all, it would expose the government and private sector entities to an entirely new array of costs and complications, because in addition or apart from complaining to my office, people could go directly to court. It might enrich the lawyers, but it would not do much in terms of the burdens the government or private sector organizations would have to face.

Second, you would end up possibly with competing findings. I investigate a case on the basis of the laws that I am endowed with overseeing. I reach a certain finding. What if a court presented with a similar case reaches the opposite conclusion? What takes precedence? Where do we go?

In addition to the confusion this situation would cause-and this is an important point to make-the fact of having such a law going forward through the legislative process at this time, in this form, would cause horrific problems for the credibility of the PIPED Act or Bill C-6. I am already hearing great concern for private entities that fall under the jurisdiction of Bill C-6. They say that they are trying to comply with the new law that is just coming into effect. It has been explained and so forth. Now there is a possibility that they will simultaneously be subject to an entirely different regime, perhaps being sued. How are they supposed to deal with this? Quite frankly, if this problem is allowed to go forward, I fear for the effectiveness of what we already have in place.

I know that Senator Finestone has said the bill can always be amended in committee. The trouble is giving this kind of two-track system approval, however temporary, would create grave problems for the credibility of the privacy regime in this country.

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