Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 21 - Evidence

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-27, to guarantee the human right to privacy, met this day at 11:13 a.m. to give consideration to the bill.

Senator Marjory LeBreton (Deputy Chairman) in the Chair.

[English]

The Deputy Chairman: Honourable senators, we are meeting to discuss Bill S-27, which has been advanced by Senator Finestone. I would ask Senator Finestone to address the committee and speak to the bill.

Hon. Sheila Finestone: Madam Chair, I can tell you it is exciting to be in front of my colleagues in the Senate. It is a first experience for me and I hope I do not make too many mistakes. I am joined by Eugene Oscapella, who is here as a legal adviser and as a specialist in the field of human rights, particularly privacy rights. I am very grateful for his presence, as he will be, I am sure, very helpful to us.

Honourable senators, thank you for giving me the opportunity to discuss with you, through the proposed privacy rights charter, this value of privacy which is at the heart of modern democracy. Protecting privacy is not merely a matter of controlling data in the business world. I would remind honourable senators that they studied Bill C-6, the data bill, but I am talking about privacy as a human right, not privacy as a business right. Bill C-6 goes beyond that. It is an issue of fundamental justice. As Professor Ursula Franklin stated four years ago when speaking in Ottawa, "...all the notions of privacy can trace back their origin and validity primarily to considerations of human rights."

Though merely 12 clauses long, the proposed privacy rights charter is in many ways a much broader and larger document. It is intended to fill a significant gap in providing an umbrella of principles to inform the actions of Parliament and the federally regulated private sector. In a graphic way, the privacy rights charter would be an overall umbrella from which the tenets of the right to personal privacy, the right to live alone, would hang as a tapestry against which you would measure and weigh the needed legislative protections -- whether criminal or civil -- and other measures that need to be taken. There would always a guideline ahead of you, whether from the Parliament of Canada or the federally regulated private sector. The privacy rights charter reflects countless discussions with privacy experts over many months. It incorporates the views of those who would be affected and those who would be served by this legislation.

In my former life as a member of Parliament I was privileged to serve as the chair of the House of Commons Standing Committee on Human Rights and the Status of Disabled Persons. During a 10-month period in 1996-97, that committee conducted an extensive examination of the changing face of privacy right across Canada. A key recommendation of the committee was to enact a declaration of privacy rights, and that is what this is all about. This quasi-constitutional document would apply within federal jurisdiction and would take precedence over ordinary federal legislation. It would serve as a benchmark against which the reasonableness of privacy-infringing principles and practices and the adequacy of legislation and other regulatory measures would be assessed. Committee members also expressed the hope that this privacy charter would lead to the adoption of similar legislation by the provinces and territories. The privacy charter before you is the embodiment of that important recommendation.

Concern for privacy, I need hardly remind you, extends back long before the work of that House of Commons committee. As my colleague the Honourable Senator Noël Kinsella mentioned in the Senate chamber, 14th century England saw the introduction of privacy legislation against eavesdroppers and peeping Toms. We have many eavesdroppers and peeping Toms who are far more sophisticated today with high technology. In fact if you look out the window you can see the "muffs." They can pick up the sound on Parliament Hill. That is how sensitive they really are.

The modern formulation of the concept of privacy emerged in the late 19th century, long before information-hungry computers, long before surveillance cameras, long before genetic testing. In the intervening decades we have seen abuses of privacy at the hands of errant governments. In response to those abuses, international instruments have attempted to strengthen privacy rights. I am speaking of instruments such as the Universal Declaration of Human Rights, which was co-written by a Canadian, John Humphrey -- who is from my riding -- along with Eleanor Roosevelt.

Senator Cohen: Born in New Brunswick.

Senator Finestone: We have a great affinity for the Declaration of Human Rights. You will find privacy integral to that document, as well as to the International Covenant on Civil and Political Rights.

In Canada there is a long history of calls to establish a right of privacy as a means to cement our democracy. In 1971, almost three decades ago, the Department of Communications and the Department of Justice established a task force on privacy and computers. It is amazing that that happened some 30-odd years ago. The executive committee of the task force included two individuals who have gone on to make substantial marks in Canadian society: Alan Gotlieb and Gerald La Forest. I should say Justice La Forest of New Brunswick.

Privacy, the task force acknowledged, was vital, "integral to our very conception of what it is to be human." The prescient report of the task force warned of the enormous technological capabilities of computerized information systems and their ability to raise threats to human values like privacy. The report stated:

Whatever the likelihood, or indeed the value, of finding in natural law, written law, or political theory a basis for a "right to privacy," the important fact is that there seems to be an increasing expectation that such a right should be socially and legally recognized.

The report also mentioned:

...the threat to individuality posed by the very concentration and processing of large quantities of data about individuals. This threat is one of conformist behaviour induced by the certainty that one's file exists and grows, coupled with the uncertainty as to what it contains and the uses to which it will be put.

Those comments were valid three decades ago. They are even of greater urgency today and support an important precept: Simply because we have the technology to intrude into the lives of individuals does not mean that we should intrude. I believe a well-known American stated that not only do we intrude, we also actually commit theft when we intrude in certain measures, such as copying copyright materials and things of that nature. It all falls under what was possible, what is possible and what we should do with what is possible.

The report then cites Professor Alan Westin's warning that public awareness of the potential use of personal information about individuals would lead to more "behaviour for the record" and less freedom of action and expression. People will be concerned, he said, not only with going on the record but also with how that record will look to those in authority. For me, Professor Westin's comments sound a warning bell about the risk of authoritarianism creeping into our lives through our failure to protect our privacy and to respect our democracy.

The task force report made several important suggestions. The one that struck most forcefully was its call for an overall concept of privacy. That overall concept, the report continued, might serve to guide both general statutory enactments by federal and provincial governments establishing a right to privacy in law and particular acts governing the activities of specific institutions or industries.

A privacy right was included in almost the very first draft proposed by the federal government when it unveiled its Charter of Rights and Freedoms. As we all know, an explicit right did not appear in the final version of the Charter. Still, calls for the inclusion of a constitutional right to privacy continued.

In 1987, the House of Commons' Standing Committee on Justice and Solicitor General reported on its review of the federal Privacy Act in "Open and Shut: Enhancing the Right to Know and the Right to Privacy." The committee concluded that the absence of a common-law and/or Charter-based right to personal privacy was a significant impediment to protecting individual rights. The committee also recommended that, when the time came to consider amendments to the Charter of Rights and Freedoms, serious consideration be given to creating a simple constitutional right to personal privacy.

In 1991, the Privacy Commissioner of Canada appeared before the Special Joint Committee on a Renewed Canada to advocate amending the Charter of Rights to give Canadians clear constitutional privacy protection. However, as we all know, no constitutional privacy amendments resulted. I think we know quite well why we will not reopen the Constitution at this point. Earlier this year, in his final report as Privacy Commissioner, Bruce Phillips recognized that any government would likely be reluctant to reopen the Charter of Rights in the near future. He was enthusiastic about the passage of Bill C-6, calling it a major milestone in the evolution of privacy protection. He cautioned, however, that the battle was not yet over.

Clearly, there has been some movement to protect privacy in this country. I give you as an example Quebec's Charter of Human Rights and Freedoms, which has obtained a sort of quasi-constitutional status in that province. It affords every person in Quebec the right to respect for his or her private life. I believe it is a role model and an example to all of us in the rest of Canada.

The federal Privacy Act and its provincial and territorial counterparts have helped to control the enthusiasm of governments for collecting, using and disclosing personal information about Canadians.

Bill C-6, following the example of Quebec's private sector data legislation, represents a significant advance in the protection of Canadians' personal information held by the private sector. However, Bill C-6 is limited to data protection and, at least initially, it covers only the federally regulated private sector.

Honourable senators, in the briefing book I have prepared for the committee, you will find Chapter 2 of the study that was done in 1996-97, within which you will see a chronology of all the undertakings worldwide in the field of privacy. I draw to your attention in particular the OECD and the European Union where, if one does not have proper privacy legislation that deals with the economic perspective, not necessarily the human rights perspective, then business restraints will be put in place. That is one reason why we had Bill C-6 and why it is an important and good bill. It is one of the hangers, if I might use that word, that you would find in an over-arching piece of umbrella legislation such as this.

Our courts have also stressed the pivotal role of privacy in a democratic society and read public privacy rights into sections 7 and 8 of the Charter of Rights in specific situations. If you read the Supreme Court decisions, you will find these protections often cited on the issue of privacy. However, that constitutional protection remains fragmented and is not comprehensive.

Those measures are simply not enough. They are only pieces of a much larger privacy pie. Accordingly, for many months I have been working with a dedicated group of privacy advisors and legal counsel to develop Bill S-27, an over-arching statement of principles -- a privacy umbrella, if you will -- that will serve as a template for the protection of privacy in relation to both the public and the private sectors.

Bill S-27 gives Canadians a means to protect themselves from privacy abuses. It serves as a litmus test to allow people to measure intrusive actions by those around them -- governments or private sector organizations. The bill thus seeks to ensure that this fundamental value, this instrument for the preservation of democratic rights, is positioned as securely as our parliamentary processes and our current constitutional realities permit. I might note that Mr. Phillips described Bill S-27 as an alternative he could "enthusiastically support" given that Canadians still do not have a broad constitutional right to privacy.

In Vancouver in March at a privacy protection conference I circulated more than 300 copies of my consultation draft of the charter, following which I distributed another 300 copies to the witnesses who had participated in the House of Commons hearings on privacy. The responses have been very strongly supportive.

At the heart of the privacy rights charter, in its preamble, is the recognition of privacy as a basic human right and a fundamental value. I have given you an annotated legislative guide to this charter, which will you find amongst the papers.

In the preamble is a recognition of privacy as a basic human right and a fundamental value. Privacy is a defining difference between an authoritarian state and one built on democratic principles. The preamble reflects Canada's commitment as a signatory to international human rights instruments to honour and promote privacy. It acknowledges privacy as an interest in the public good, one that is essential to the preservation of democracy and the exercise of many of the rights and freedoms guaranteed under Canada's Charter of Rights and Freedoms.

Bill S-27 seeks to give effect to several principles identified in clause 2 of the bill. The first principle is that privacy is essential to an individual's dignity, integrity, autonomy and freedom and to the full and meaningful exercise of human rights and freedoms. The second is that there is a legal right to privacy. The third is that an infringement of the right to privacy must be justifiable in order to be lawful.

Honourable senators will find much of this language is a reflection of the language in the Charter. I am sure it is ringing that bell as I am outlining this.

Clause 9 states that Bill S-27 will apply to all persons and matters coming within the legislative authority of Parliament. Under clause 3 of the bill, every individual has the right to privacy. That right includes, but is not limited to, physical privacy; freedom from surveillance; freedom from monitoring and interception of privacy communications; and freedom from the collection, use and disclosure of personal information without one's permission. Bill S-27, therefore, goes much beyond the regulation and collection of personal information that you would find in Bill C-6. It deals with all forms of privacy infringement.

Clause 4 states that no person shall unjustifiably infringe on another person's privacy. That same clause entitles every individual to claim and enforce that right to privacy. It also permits every individual to refuse to unjustifiably infringe the right of privacy of another individual without reprisal or threat. We all recognize that privacy rights are not absolute. We must find a fair balance. We cannot say that you can have only this or that privacy; there must be a fair balance within the framework of how we live in a democracy. The key is to prevent unjustifiable infringements, things that should not be done because they do not reflect what we have stated in section 2 and section 3 are our rights. The key is balance. Under subclause 5(2), any infringement of an individual's right to privacy would be improper unless that infringement were reasonable and could be demonstrably justified in a free and democratic society.

Subclause 5(3), sometimes known as the Oakes test for those who have followed the Supreme Court decision making in this area, sets out a multi-pronged test for determining whether an infringement is justifiable. To be justifiable, the infringement must first be lawful. Second, it must be necessary to achieve an objective that is compelled by the need to respect another individual's human right or another interest in the public good and it must be sufficiently important to warrant infringing the right to privacy. Under the Criminal Code there are police rights, RCMP rights -- everyone has rights, as long as they are acknowledged as rights and they are not outside the purview of a democratic society. In the same way, you could say that there are laws and rules that exist around the health sector -- what you need to know in the development of good health public policy. Third, it must not be possible to achieve the objective by any other measure that infringes privacy to a lesser extent. Last, but not least, both the importance of the objective and the beneficial effect of the infringement must outweigh the detrimental effect on privacy.

Some might see Bill S-27 as an attempt to stifle certain activities -- policing, for example. This bill is not intended to interfere with the police or other bodies that legitimately need to intrude on privacy. The use of certain police powers exercised in accordance with valid legislation would constitute a justifiable infringement on the right to privacy.

Subclause 5(4) makes it clear that an individual's free and fully informed consent to an interference with privacy would not constitute an infringement. In other words, if I said, "Yes, it is okay to use that information," then I have given my full consent. If I have not been asked -- which is like a double negative, thank you very much, negative-option marketing -- then I am sorry, I did not say yes and you cannot send it to me and you cannot charge me for the item. That is all part of what would be considered my privacy right.

Under clause 6, the Minister of Justice is obliged to review all proposed legislation and regulations to determine whether they comply with the purpose and provisions of the privacy rights charter. The minister must report any inconsistency to Parliament at the first convenient opportunity and must give public notice by publishing the report in the Canada Gazette. The minister must also notify the Privacy Commissioner of Canada of any inconsistency or non-compliance at the first convenient opportunity. If the Privacy Commissioner requests, the minister must consult with and receive advice from the commissioner.

Those review and notification obligations should promote a new sensitivity to the application of legislation and regulations, and I believe new respect. They are necessary to preserve this right in the face of the multitude of pressures to diminish or destroy it. It would also ensure greater transparency in the legislative process. That is something we talk about all the time -- transparency, openness.

To provide greater certainty, clause 7 authorizes the Governor in Council to codify the infringements of privacy that are permitted by the privacy charter. This is not a notwithstanding clause or an exceptional provision. The only authority would be to codify those infringements that are justifiable under the Charter. The authority does not extend to producing regulations that violate the Charter.

Bill S-27 also enhances the protection of privacy where governments enter into contracts with organizations outside government. Subclause 8(1) states that every person to whom the privacy charter applies must require that any organizations with which he or she enters into a contract or agreement complies with the privacy charter. Thus government would not be able to sidestep its privacy obligations, for example, by contracting out a particular function to an association, corporation, partnership, trade union or Crown corporation.

It is also important that the privacy rights charter have paramountcy over ordinary legislation, since an inconsistency or conflict might arise between the charter and another act. Clause 11 addresses that, so it should be quite clear and there should not be this need to worry about conflict of language. The charter will prevail to the extent of the inconsistency or conflict unless the other act expressly declares that it operates despite the charter. Furthermore, no provision of any other act would be construed so as to derogate from any provision of the privacy charter.

Clause 12 states that the paramountcy provision comes into force only one year after the charter receives Royal Assent. You may find that not long enough, and you may wish to challenge that or change that. That will give Parliament time to amend legislation that might be affected by the paramountcy provision.

Honourable senators, as I stated during the second reading debate on Bill S-27 in the chamber, the bill may not be perfect. We have benefited at various stages from the capable advice of a legislative drafter and from the ideas of individuals who are very experienced with privacy issues. I am most grateful to have Mr. Oscapella, one of those individuals, with me.

Still, its language is necessarily complex. Our full and open review of the bill is clearly in order. I am deeply thankful for the opportunity to start that review in this committee, which has had the benefit of its earlier experience with Bill C-6. We do not want to foster a society where there is no place to hide, where there is no place to be anonymous, where there is no place to express the individuality that we cherish in a democracy. We do not want to be constantly checking over our shoulders to see who is monitoring us. We have seen that type of oppressive behaviour too many times in too many countries. Those are not models of behaviour that Canada wishes to follow.

I do not want to sit idly by watching one of the fundamental pillars of a democratic society vanish through atrophy; nor, I am certain, do you. This must be our commitment to ensure that privacy does not get lost amidst the technological wizardry that is being embraced by surveillance-happy businesses and governments. I know that honourable senators want to provide a legacy of strong democratic institutions and principles for this country that we all love so much. I hope that this privacy rights charter will take us one step closer to ensuring that legacy.

The Deputy Chairman: In listening to Senator Finestone's excellent presentation, I note that she made a reference on page 8 and then in her closing about the fact that we do not wish to foster a society with no place to hide. In your research and consultation, what is your sense of the level of knowledge of ordinary Canadians? Do they realize the extent to which they are being monitored?

Perhaps Mr. Oscapella could answer this. Are Canadians really aware that they are probably being watched more, and listened to, without their consent? I think particularly of surveillance cameras in stores. Are people giving consent just because they walk through the door of a store? I often get the sense that Canadians are not as concerned about this as they should be.

Mr. Eugene Oscapella, Legal Adviser and Specialist in Human Rights: Madam Chair, there certainly is an awareness of the need to protect privacy. I do not know how well defined the research has been on the extent to which Canadians are actually aware of the numbers of privacy invasions that are occurring, but a survey done in 1992 did show a substantial level of concern about privacy. The potential for the loss of their privacy was one of the issues of greatest concern to Canadians. A survey done last year reached similar findings, I believe. There is a great deal of concern about the potential for the loss of privacy. People notice it most dramatically in the workplace. There is increasing pressure in Canada to submit to drug testing, which has not been shown to do anything of value for society; nonetheless, there is much pressure. Most of that seems to be coming from the model we see in the United States, where the vast majority of Fortune 500 companies conduct drug testing. People in Canada are now beginning to feel some of those privacy intrusions in a very real way.

Senator Finestone: Yes, with surveillance cameras.

Mr. Oscapella: There are surveillance cameras, as Senator Finestone says, and the cameras we see in the street. We look to the United Kingdom as an example. They have hundreds of thousands of surveillance cameras in public places.

The Deputy Chairman: How do they get around it in the law? When a store puts a triangle sticker on its door indicating electronic surveillance, is consent implied when people walk through that door? Is that how they cover it off legally so that they are able to massively survey people?

Mr. Oscapella: It would vary from province to province. British Columbia, Saskatchewan, Newfoundland, Manitoba and Quebec have, perhaps, better developed privacy legislation than some of the other provinces. Essentially, there is no prohibition against video surveillance. If the police conduct video surveillance they must get a warrant beforehand, but if you or I were to conduct it there would be no prohibition. The provinces I just mentioned have what is called a privacy tort. Quebec has something equivalent in its Civil Code. In those cases you might be able to challenge that sort of surveillance in a court, but there is not much to control video surveillance. The legislative prohibition is on the recording of sound. You can have a video camera installed in your store. However, if you surreptitiously record sound you are committing a criminal offence in certain circumstances. We have no protection for video surveillance, which can be equally intrusive.

Senator Finestone: We are all very concerned about safety and security. Many of those cameras seem to protect the main streets of the cities from crime, or they are used to identify criminals on the streets. However, they displace where the crime is taking place. It is often around the corner or in a back alley. The new technology is able to do the physiognomy of the face and the body, and the police are then able to scan the crowd and pick out the face that is the criminal element.

Certain things are important in the public good and certain things are offensive to us in the public good. For example, cameras are often installed in public washrooms, supposedly to detect those who are pushing drugs or those who are taking drugs or those who are committing sexual assault. However, do they have the right to intrude on you while you are in the bathroom? Prisons have cameras that stare down on the prisoners 24 hours a day in every aspect of their daily life.

Is there any right to any degree of privacy anywhere? I do not know. That question will need to be discussed under criminal or civil law. It is not something we know the answer to. These are all issues that require deep investigation by the public, but we have no template against which to look at what are the values we are talking about. What is the vision that we have for society? What are the values we put before society, and where does a privacy charter for human rights versus a privacy charter for data collection come into play?

The Deputy Chairman: Where do you draw the line between protection of the public and the individual?

Senator Finestone: That is right.

Senator Fairbairn: Senator Finestone, before asking my questions I want to congratulate you on putting forward this piece of legislation. I know how long you have been working in this area and I know your commitment to finding this kind of protection for individuals. I admire you for it and I want to thank you for being here today and for being an activist within the Senate on this issue.

When I look at this, I think back to a document that was brought forward by a former prime minister many years ago -- the Bill of Rights.

Senator Finestone: It was John Diefenbaker.

Senator Fairbairn: Yes. That was followed many years later by the Charter of Rights and Freedoms, which had extra strength as a constitutional document.

Earlier, you referred to the charter that you are proposing as a quasi-constitutional document. Could explain that to me?

Senator Finestone: Thank you for that question and for your opening remarks.

It is quasi-constitutional because there is absolutely no opportunity to open the Canadian Charter to include it therein. Although it is found in international charters in many countries -- for example, it is found in the international Charter of the United Nations -- it was left out of the Canadian Charter. I imagine that must have been due to give and take on some federal-provincial level. Mr. Diefenbaker's Bill of Rights has quasi-constitutional status, too. I believe that this privacy charter could arrive at that state as well because the courts would use it as a reference point. The courts can determine whether what is being brought before them fits the Oakes test that we have put in here. That Oakes test was developed by the Supreme Court in analyzing the justification for bringing a case before the courts. That is the test the Supreme Court would use. We have used exactly the same test so that there is no incompatibility that would create confusion when you are looking at something that might be considered worthy of consideration as going against or for privacy, as the case may be.

This does not define what we should be doing in the instance of genetic testing. It does not say what we should be doing in terms of controlling this new book of life and the human genome. We do not know what will be happening with that. That would have to be new legislation that would be reflective of privacy rights. You would hang that on your overall umbrella. You cannot have one universal law for human rights. Your human rights must reflect fundamental values and must be tailored to individual cases, if I could put it that way.

I will use something that is dear to the hearts of some of our colleagues, namely, the question of the census. How do we describe that?

Mr. Oscapella: The archives?

Senator Finestone: Yes.

Mr. Oscapella: The issue we were discussing was whether, under this legislation, archiving personal information would be prohibited. It would not, but it would set a standard for the archiving of information.

I wish to return to the point of the quasi-constitutional status. That would flow primarily from the final clauses of the legislation -- the non-derogation of the clause and the paramountcy provisions in subclauses 11(1) and 11(2) of the bill. This bill would stand above all other legislation. It would be paramount to all other legislation unless it was declared otherwise. This bill would also apply to laws that existed before this bill came into force. That would give it its overarching umbrella quality, its quasi-constitutional status, in effect. That is how we were looking at structuring this.

Senator Fairbairn: Presumably that would be played out, almost by definition, through actual rulings of courts as these issues were raised in the legal process.

Mr. Oscapella: Very much so. Clause 4 states that every individual is entitled to claim and enforce their right to privacy. We would look at courts as the primary vehicle for developing this overarching set of principles beyond the strict wording of the legislation itself.

Senator Kennedy: I will ask you my question personally at a later date because I do need to leave and I am not anticipating a brief answer, but I do congratulate you on this important work. I will put my question on the record, though. It is with respect to the encryption of material, particularly in a medical sense. It is not too difficult to see the day when we would all have our medical history in one file, and it should encrypted. Who will own that? Will the hospital own it, will a doctor own it, or will we own it?

Senator Finestone: I can give you an answer but it would be a personal opinion, and it is an important question. That medical history would be data collection that would fall under Bill C-6. When the health issue comes into effect under Bill C-6, which has been delayed by a year, that question should be answered because it is one of the aspects of personal privacy. It is one of the reasons why we need a privacy charter. I say to you that you should own your medical history yourself, because this is a privacy charter for individuals in Canada. As a Canadian citizen living in a democratic society, I should have the right to control the information about me. I should have the right to say, "Yes, you need to know this," and "No, you do not need to know this." The government has said, under the right to draw regulations, that while certain things will abrogate your privacy, it may determine that the encryption system belongs to the Health Department. I do not know. It is a discussion that needs to take place.

Senator Fairbairn: To what degree have you discussed or worked through this charter with the Minister of Justice, who obviously would be an important player in making it work?

Senator Finestone: I can speak only from personal experience. We wrote our report in 1996 and it was given to the Minister of Justice in the House of Commons. The House broke for an election, and we had no response from that minister. When we returned, the next committee of the House of Commons looking at the status of the disabled reintroduced our recommendation for a privacy charter and asked for a response from the Minister of Justice. We did finally receive a response in 1998 or 1999, at which time the ministry responded by saying that the Privacy Act and the Canadian Human Rights Act were going to be reviewed by the minister, and she set up special review committees. She felt that it was not the time to involve herself in the promotion of a charter, but the department recognized that a charter was important with respect to the work that the department was doing.

We have been in touch with the Minister of Justice as recently as within the last week, and it still holds true that people in the department see this as important. They see it, however, as a prologue or as a preamble to a bill on the responsibilities of the Privacy Commissioner. I think one is content and one is container. The question is whether you want the contents or the container or whether they both belong together.

That is where we are at with the Department of Justice. A direct contact with the Minister of Justice has not been made with respect to this bill other than to tell her that she should adopt whatever we do. I thought that would be great information for her because we did all her work.

Honourable senators, I have never drafted a bill before. I have critiqued bills. I have been an opposition member and government member. However, to draft a bill is the most incredible experience. My colleague and friend here had never drafted a bill either. We could not believe how complex the process is, dealing with linguists and legal drafters and translators and weighing every word that the Supreme Court has ever said on sections 7 and 8, and the language that was used in the Universal Declaration of Human Rights, sections 12, 17 and 18, and the language used at the OECD, at the European Union, in Australia and New Zealand, and in the bill that was passed by the Americans. You see how difficult it is to build legislation. My hat goes off to any department that is drafting a bill. It is not easy.

Senator Cohen: I am glad you warned us, Senator Finestone, about this being the first time either of you has drafted a bill, because now we will be very careful when we do clause by clause. Thank you so much for raising the whole issue of privacy and the need to revisit privacy legislation. I note in our briefing book it has been 15 years since some of these privacy issues have been examined. It is time to examine them now.

My question is simple, and I do not know if it falls under Bill C-6 or under the privacy charter. It has to do with lists. When I subscribe to a magazine because I want a certain issue, often my name is passed on to another company, or another group of people whose mail or magazines I do not want coming to my house. Would that fall under this type of legislation or is it already covered elsewhere in another bill?

Senator Finestone: It is a fundamental philosophy that underpins this bill that we as Canadian citizens have the right to privacy and only give up that right with knowing and knowledgeable consent. That was addressed under Bill C-6. It is why the Privacy Commissioner and I are very supportive of that bill. That bill, however, is only one small piece of the pie that is your and my privacy. That matter should be dealt with under Bill C-6, through regulations and through the principle and philosophy that is supposedly expressed in that bill.

Mr. Oscapella: Right now, it is a jurisdictional issue. The lists containing your personal information would probably be held by a private company. Bill C-6, as you know, applies only to the federally regulated private sector at this time and will extend, perhaps after three years, to the provincially regulated sector as well. The situation you described would be covered by Bill C-6 if it were a federally regulated company distributing the lists.

This legislation is limited in its scope. We hope that it will serve as a template for the provinces and territories, but it will govern only the activities of the federally regulated private sector and governments. We hope it will shine a light on the path and lead the way for the provinces. Again, this would cover personal information about you, as clause 3 says. Essentially, it is a data protection provision that would have paramountcy over Bill C-6 through the way in which it is drafted.

However, the issue is whether that list will be maintained by a federally regulated company. The interface between the various pieces of legislation and the privacy charter will require some working out. Again, this sort of thing happens. We have the Canadian Human Rights Act and the Charter of Rights and Freedoms. They both deal with human rights. There are ways of interpreting them in fashions that are consistent.

Senator Cohen: When I fill out a form or buy a subscription, I write on the form a sort of notice that states, "Please do not pass my name on to any other company." I have been doing that for some time now and it has been helpful.

Senator Finestone: Yesterday, in tributes to Mr. Trudeau, we heard Senator Kinsella allude to the role he played using the Canadian Charter to effect women's fair play and equality. The Lovelace case was the first case that tested section 15, the non-discrimination section of the Canadian Charter of Rights. I was on the five-member committee that conducted the review and the research on section 15. It was seen as a magnificent Magna Carta and, hopefully, as a potential for redress in terms of fair pay and fair play. However, it did not become a reality for all of us. We did not see it as a mechanism of government and democracy until it was tested by the courts. It was Senator Kinsella who did that. That opened a floodgate of close to 300 or 400 decisions that have been taken since. It needed that template. The Charter had a way of bringing this issue to life.

Some of us are very aware of privacy, and some are not so aware that we could lose it. Privacy is not something we want to lose. If we do not want a totalitarian society, if we want a democracy, we need it. That is why this charter could be so effective. It could shine the light and, at the end of the tunnel, we could have legislative remediation as well as more sensitivity and education.

The Deputy Chairman: Thank you, Senator Finestone and Mr. Oscapella. Your testimony was most informative.

The committee adjourned.