Past Session:

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

Issue 25 - Evidence

OTTAWA, Thursday, September 20, 2001

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-21, to guarantee the human right to privacy, met this day at 11:05 a.m. to consider the subject matter of the bill.

Senator Marjory LeBreton (Deputy Chairman) in the Chair.

[English]

The Deputy Chairman: Honourable senators, on Thursday, April 26, 2001, this committee received an Order of Reference from the Senate to study the subject matter of Bill S-21, to guarantee the human right to privacy. The bill is sponsored by the Honourable Senator Finestone.

Debate at second reading in the Senate raised a number of outstanding issues that the committee has been asked to examine as part of its study on the subject matter of this bill. The first issue relates to clarification of the definition of privacy, along with an assessment of whether privacy is a fundamental human right. The second is an evaluation of the existing federal legislative infrastructure regarding the protection of privacy, such as sections 7 and 8 of the Canadian Charter of Rights and Freedoms, the Privacy Act, the Personal Information Protection and Electronic Documents Act, formerly Bill C-6. Third is the issue of the interaction between the right to privacy, the Criminal Code and the burden of proof; and, finally, the role of the federal Privacy Commissioner.

We will begin today with Senator Finestone, followed by Mr. George Radwanski, the Privacy Commissioner, followed by a panel of officials from the Department of Justice and Professor Valerie Steeves, who is a professor of law at Carleton University.

Hon. Sheila Finestone: First, I would like to introduce Mr. Eugene Oscapella, who is my adviser on this particular subject, which I have been dealing with since 1997.

Madam Chairman, the tragic events of this past week are still ringing through our hearts and our minds. They will continue to do so for many years. Their impact on humanity has already begun to shape our future. How we respond to those events will determine whether we remain a society guided by democratic principles or whether we become driven by fear to abandon many of the values, including privacy, that are indispensable to our way of life. If we choose the latter course, I believe, and I am sure you would agree, honourable senators, that terrorism will have won out.

Our own government, our American friends and colleagues, our allies, are now pondering whether to turn toward war. The question on everyone's mind, of course, is: War with whom? The danger lies in turning that war against ourselves.

Just a few days ago I read a thoughtful opinion by University of Southern California law professor Susan Estrich describing "the thin, thin line between safe and free." There is an understandable urge to give governments more power to learn about us. She said that the danger is that we will end up neither safe nor free.

Madam Chairman, we all know that the extent of our rights varies with the circumstances of our society. In times of war, our rights and freedoms may need to be limited. No rights are absolute. All rights must be assessed within their current social context, but let us not make too much haste to abandon or seriously truncate the rights and freedoms that are so emblematic of a democratic society.

Those limitations must be surgical in their precision, not aimed haphazardly at every shadow. History shows that rights are not something you suspend only in the short term. Once gone, they are often not recoverable.

Constitutional protections are most important in times of national threat. You will notice that in all the news media of late. In the midst of a national scare, defence to the government can itself be a threat. We need only look to the internment of Japanese civilians during the last war and the vicious McCarthy purges in the United States less than a decade later.

Speaking in 1989, the U.S. Supreme Court Justice Thurgood Marshall reminded us that, "History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."

An editorial in the New York Times just one day after last Tuesday's attacks cautioned that Americans must rethink how to safeguard the country. However, they must do so without bartering away the rights and privileges of the free society that they are defending. The editorial continued:

"The temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies - or even military forces - a right to undermine the civil liberties that shape the character of the United States. President Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans."

Madam Chair, my task in moving forward with the Privacy Rights Charter at this time has been made doubly difficult. However, it is also doubly important. It would not be surprising at this time to hear many people suggest that the government should have unlimited, or at least greatly expanded powers of intrusion in the name of safety and security.

The notion that we should some how embrace the fundamental right of privacy at a time like this might seem to them completely illogical, but it is not. There are many other safeguards for warrants that are all part of the system that we presently have in government, and it is not a problem. It is a balancing act. It is in the law already, and it is in the method of measuring and weighting the law.

Encapsulating this right within domestic legislation, as I seek to do with Bill S-21, is a critically important next step after our accession to international instruments guaranteeing the right to privacy. Canada is a signatory to the 1966 International Covenant on Civil and Political Rights, for example. That document speaks of the right to protection against interference with privacy. However, it is not an unlimited right, as we all know. The covenant protects against excess. It protects against arbitrary and unlawful interference with privacy.

The 1948 Universal Declaration of Human Rights was the world's first modern response to the violence of the first half of the 20th century, including two world wars. The drafters of the Universal Declaration, having witnessed the withering destructiveness of totalitarian regimes throughout the world, recognized the importance for democracy of several rights.

Among those human rights, privacy figured large - the right to life, liberty and security of the person, protection against arbitrary arrest or detention, and the protection against arbitrary interference with privacy. These were rights born of war, born of authoritarian abuses. They must not be surrendered now. It is vital that we, as senators, give privacy a secure home in our law.

These privacy rights are not inflexible. They are not absolute. I have said that many times. They are not absolute. The Universal Declaration of Human Rights, for example, allows such limitations:

...as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

The narrow privacy rights that have been read into the Canadian Charter of Rights and Freedoms by our courts are also subject to limits. These rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. I am referring there to section 7 and 8 of the Charter.

Madam Chair, the bill before you is not an impediment to the legitimate exercise of state authority any more than our international human rights instruments or our Constitutional law are impediments to legitimate state authority. This bill is a limit on excess. It is a reflection of our international commitments, commitments that have a greatly heightened importance in times of crisis. It is a reflection of the strength of our current democracy and our commitment to remaining a democracy.

I remind you that privacy is indeed a human right. Its inclusion in the Universal Declaration of Human Rights makes this abundantly clear. In September 1996, the Honourable Allan Rock, then Minister of Justice, underlined this in a speech to a gathering of international data protection commissioners in Ottawa when he referred to privacy as a human right, and quoted, with apparent approval, its description as a basic human right.

Your task today is not the line-by-line examination of this bill. However, it is important to understand the general context of the bill.

The bill seeks to give effect to several principles, among them 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. As well, the bill establishes a legal right to privacy, which we currently do not have.

The bill will apply to all persons and matters coming within the legislative authority of Parliament. The right of privacy set out in the bill includes, but is not limited to, physical privacy, freedom from surveillance, freedom from monitoring and interception of private communications and freedom from the collection, use and disclosure of personal information. It encapsulates the oft-heard concept of the "right to be let alone."

The Privacy Rights Charter, therefore, goes much beyond regulating the collection, use and disclosure of personal information - which essentially is a business contracting undertaking - such as contemplated by federal and provincial data protection laws, including the recently enacted Personal Information Protection and Electronic Documents Act, Bill C-6.

Some concern has been expressed about how the bill would tie in with existing legislation. The bill would be paramount over other ordinary legislation. In simple terms, the Privacy Rights Charter will necessitate a review of existing federal legislation as well as new legislation to ensure compliance with the bill.

Had we entrenched a constitutional right to privacy, as many had wanted us to do in 1982, we would have done that very exercise at that time. This is precisely the process that we undertook with section 15 of the Charter, the equality rights provision, which I personally was involved in doing. It was quite a fascinating exercise. We reviewed all of the laws of Canada on time.

There is nothing extraordinary about doing that review now to assess compliance with quasi-constitutional privacy rights. Nor, if we truly value privacy, should we be afraid of the deficiencies we might uncover in existing laws.

There seems little sense in grandfathering existing legislative provisions. That would amount to giving legislation enacted before the charter special immunity from a consideration of whether it violates the privacy principles contained in Bill S-21, which is a template in essence. The basis of this special immunity would turn on nothing more than the birthdate of the legislation - hardly a sensible basis for securing this fundamental human right.

Madam Chair, there has been some concern as well that the bill would turn on its head the current notion that a person is free to act unless the action is prohibited by law. Some fear that the charter would prevent individuals from acting in a way that might infringe on an individual's right to privacy unless that act had been deemed lawful.

Madam Chair, I do not believe that to be an accurate interpretation of the bill. However, if this continues to give rise to concern, or other issues, for that matter, we might, in the hearings amend the test. It could be rewritten to say that among other things an infringement is justifiable if it has not been made unlawful.

Some have also claimed that the bill may harm the working of law enforcement agencies. Honourable senators, this argument is both fish and fowl. It is a red herring; it is a canard. The argument goes something like this: The activities of law enforcement agencies were approved by Parliament or established by the common law. Those standards may be different than those set out in the bill. Giving the bill quasi-constitutional status would raise the bill above these laws, upsetting the balance that Parliament has already set between enforcement powers and privacy. I have the sense the courts will know better.

Madam Chair, that is exactly the sort of review and reconsideration that the Canadian Charter of Rights and Freedoms has brought into play in respect of other rights. Why should the same process not apply to privacy?

Some have suggested that establishing privacy rights in this bill will lead to much litigation, and that litigation is only for the wealthy. In response, statements of rights need remedies attached to them. The only reason litigation is a remedy under Bill S-21, lies in the limitations of introducing a bill in the Senate.

I would dearly love to have the Privacy Commissioner of Canada supervise the application of this bill, but that would import monetary considerations. As you know, such a bill cannot be introduced in the Senate. We obtained advice from the prior privacy commissioner in that regard. If, however, the government were to pass Bill S-21 in the Senate, the Minister of Justice could adopt the bill in the House of Commons and introduce a role for the Privacy Commissioner in resolving disputes.

I am wholly confident that the privacy rights charter is both necessary and workable. We need more than a broad statement of principle. We need an enforceable right, and that is what this bill does. Some changes to the bill's provisions may be needed. That is clearly the proper domain of our parliamentary committee system. Several dedicated minds have already applied themselves to developing this bill. Those of us who have pressed so hard - since 1997 actually - for a more effective grounding of this right in Canadian law, will welcome constructive criticism. It is in the interests of all Canadians that we work together in that constructive spirit to move forward with this bill. I ask you to give Bill S-21 the right to proceed to second reading and proceed to committee.

The Deputy Chairman: In 1982, there was an effort to include this in the charter. For clarification, can you give us some reasons why you were unsuccessful then? Was there any reason why that was left out?

Senator Finestone: I have discussed this with a legal adviser and a number of people. I know only that it was there in 1981 and it disappeared in 1982. I see some members of your committee who were around at that time, and I was not. Perhaps they would be in a better position to answer your question. You might direct your question thus.

Senator Kirby: For what it is worth, I do not remember the privacy issue from that time. I remember the property rights issue, which was ultimately dropped. Frankly, I do not remember the privacy issue, perhaps because it came and went so fast. The property rights issue was on the table until very late in the game.

Senator LeBreton: It would be good to review and check the records.

Senator Kirby: I do not believe it would be in the public records, but it would be in the records that are archived under the 30-year rule.

Senator Graham: I have a simple question. I want to begin by observing that, once again, for the second day in a row, we have a senator taking a highly commendable initiative. Yesterday, we had Senator Milne with Bill S-12 relating to the census. There is no senator who has been more diligent in promoting the right to privacy as has Senator Finestone. Indeed, in another life, she was a member of the other place and Chairman of the Standing Commons Committee on Human Rights and the Status of Persons with Disabilities. She also has an international position from which, Senator Finestone, I believe you just retired. Perhaps you could tell us about that position.

Senator Finestone: I was elected by the 142-member international organization called the Inter-Parliamentary Union to the World Executive Committee, which represents all these countries. It is multinational. I sat on the steering committee for the western, like-minded nations by election, which is known as the 12-plus in that structure. I was the founder of the Women's Rights Movement in that organization, which is the oldest international organization. France, Britain and Germany founded it 112 years ago.

I have just arrived back from Africa, and the events that took place in New York were heavily on the minds of everyone. Again, this very serious worry about the abridgement of fundamental human rights, which would include the right to privacy without a sufficient, warranted need for intrusion, was the subject of conversation.

In the course of discussions, I made it clear that in Canada, you required a warrant, but that we had learned some pretty tough lessons in Canada, when we were under serious war threats. It became more and more obvious, as I was in these meetings, that we had to look to the issue of privacy. Many of the arguments that are used are not well founded in law and can certainly be argued along the way. However, I thank you for the opportunity to share this piece of information.

The ten of us who were there worked very hard on many of the international issues. It is not joy ride, but rather a hard-working session.

Senator Graham: As you indicated today, we are not examining the bill line by line. This is more of an information session. Certainly, I support the principle of the bill.

In June 2000, you introduced Bill S-27. On March 13, 2001, you introduced Bill S-21. Has there been any change in respect of a word, or a semicolon, or a punctuation mark of any kind in Bill S-21 as compared with Bill S-27?

Senator Finestone: That is an important question. No change was made. Upon advice of the clerks and the staff, it became apparent that we would be better off to make any needed changes in committee. The Privacy Commissioner had brought certain issues to my attention, which he thought needed to be changed. I was advised that that would change the whole nature of the bill, and we would have to start the process over.

There were concerns from the Ministry of Justice, which I do not consider well founded at all. Notwithstanding, I was prepared to hear them and suggested that that would be done in the course of examining this template against which actions could be tested. In the end, no changes were made to the bill. Because we have honourable senators who studied the issues that are before them, if they feel upon presentation of fact and reason that these things need to be changed, I am sure that we are open to making those changes. The mere fact that there is a question as to whether we have the right to declare the human right of privacy for Canadians strikes me as totally ludicrous. That is the issue.

Senator Graham: Just for the record, I recall that Bill S-27 died on the Order Paper as a result of the November 2000 election. You introduced the same bill as Bill S-21 in this session.

Senator Fairbairn: This issue, like the other difficult social issues we take up, is a hidden issue, which means that you have to work 10 times as hard to get your voice heard, and you have done a remarkable job.

I suppose it is fair to say that your dearest wish would be to not have to bring before us this bill, that it would be brought in by government, if it had ever been possible. This issue has been discussed for a long time.

Having said that, I note the comments on page 7 of your brief by Allan Rock, when he was the Minister of Justice back in 1996, in which he referred to privacy as a human right and, as you put it, quoted with apparent approval its description as a basic human right.

In all the work you have done up to this day, what is the feedback you are getting from within government, given that public statement by the former Minister of Justice?

Senator Finestone: It would be undiplomatic for me to say stall, stall and find a reason not to come forward in a forthright fashion. That has been my experience, and it has been extremely frustrating.

In 1997, after the study was done, every one of the subsequent ministers of justice told me they were doing a study on privacy rights, that our study was pertinent and important, and that they would be looking at those issues in the tabling of a new Privacy Act.

I did not see a new Privacy Act. I do not believe honourable senators have. There is a sense that the enlarged rights given to the Privacy Commissioner under Bill C-6 cover some of that. Those are financial, money bills. They deal with how you do business. There are many things do not deal with business but do touch every day human life in this society. I find that a very narrow focus and a very narrow perception.

There is certainly an acknowledgement that privacy is a human right. I have had the unfortunate experience of certain people saying it is not a basic human right. I think they are wrong. It has been frustrating, Senator Fairbairn. Trying to delay facing the issue and using other people to speak their words for them out of the Ministry of Justice has not been constructive in the interests of protecting Canadians.

We have tried to present a template against which all actions that are deleterious to individuals in Canada could be measured. It is a comprehensive framework for analysis that covers both the federally regulated private sector and the federal government.

I cannot be stronger in my statement of what it is. We have an overarching statement of Canadian values and principles. That is what this is. All the values found in the Constitution, and those under section 7 and section 8, are interpreted eventually in the courts because rights must have remedies. They are interpreted in the courts, they are broadened, and eventually they become accepted process in law.

However, it seems incredible that a Western nation, and we are the only one, does not say that its citizens have a privacy right. That is really where we stand.

The interpretation of a "privacy right" changes in as society evolves. Whoever dreamt that we would be where we are in a technological world today, and it has changed since.

Mr. Eugene Leon Oscapella, Oscapella & Associates Consulting Ltd.: This issue is fundamental. Senator Finestone is trying to put forward a fundamental statement of privacy values for this country. At no time has this become more important than right now when we are hearing calls south of the border, and we are seeing reports in Canada. I point to the Globe and Mail of yesterday where Kirk Makin, a respected reporter, says, "Accepted notions of privacy have likely vanished forever in the dust of the terrorist attacks on New York..."

Constitutional rights are most important in times of crisis. We cannot bring this right up to constitutional status. It is too problematic right now to put it in the Constitution. In the short term, a quasi-constitutional right is the best we can do. It is critically important right now that we try to put in a basic document that sets out this comprehensive statement of overarching principles.

Senator Fairbairn: Have you felt that your progress has been slowed because of the connection to the concept of a constitutional right requiring - ultimately, the notion of a constitutional exchange or amendment to fully recognize it? That might be part of the reason for some reluctance to jump into an issue, which, in terms of constitutional change, is such a lengthy, difficult and sometimes precarious route. I am wondering, Senator Finestone, whether that is one of the reasons that it has not been as heartily endorsed as you would wish.

Senator Finestone: With respect to the issue of inserting privacy into the Constitution, I was doing the same studies through the communications and culture committee when the Constitution was opened for revision. At that time, Senator Beaudoin brought forward a request for inclusion of privacy in the Constitution at that time. The reason for its rejection was there was such a problem with that Constitution and the change under Meech that it did not look like it was a go. I do not think it has been a go.

It has been recommended to me that I do not call it a Charter of Privacy Rights but call it a Declaration of Privacy Principles. If that would sell, and eventually we would get the enlargement of Privacy Commissioner's rights in there and we would have the legal access to privacy that would flow from it, the committee has to sit, the senators along with me, to see what we can do. In the light of not being able to have the constitutional change, that having a quasi-constitutional charter is a good idea. That is my perspective and the perspective of those who work with me. Others feel differently. I am not the final arbiter in this matter.

Senator Roche: I would like to preface my comments and my question with the sensitivity of all of us to the tragic events and attacks in New York and Washington which have been mentioned.

Senator Finestone's colleague made reference to a column that appeared recently in a prominent publication in which it was stated that, as a result of this tragedy, privacy rights have been lost forever. Surely that is an example of the hyperbole that is coming forth - understandably, perhaps - but they are excessive statements that need to be conditioned by the long-range values we are trying to look at here.

Having said that, I would like to ask Senator Finestone to elaborate on her awareness of the impact of the New York- Washington attacks on the development of higher standards for privacy.

Over the next weeks and months, when a slightly calmer atmosphere will prevail in the media, how do you think the events will actually play out? Will we, as a society, be more willing to have intrusions on our privacy for the sake of our protection? That is probably a legitimate question that is facing us. If we are willing to have more intrusion, where are the limits, in your view, to protect our right to privacy?

Senator Finestone: Senator Roche, I can count on you to ask a difficult question. I believe that, under our laws, we should have every right to protect our citizens. I believe we have laws in place that can do that. I have the greatest respect for the RCMP and the police forces of this country. I believe that they are concerned about the well-being of Canadians. If that means that they must seek out those who wish to harm us in a way that is detrimental to Canadian life and Canadian values, then they should have the opportunity to do that.

There is a system of warrants in this country that are vital to the democratic process. When you have used all avenues to try and prove the guilt or innocence of particular parties and you need further intrusive mechanisms, then you must go to the proper source in a democratic society. You do it through law and order.

I remember the committees where we looked at new technology that is quite scary, for example, muffs that can be used to hear from 500 metres away and red lights that can penetrate through thick walls and reveal who is sitting around a table and the position at tables. There are numerous types of invasive technology today that can be used not only as an enabler but also as an abuser. The question is: At what point does the enabler work and were do you stop the intruder? That is where you must be left alone.

The interpretation is not mine to make. I am trying to set the template against which you would value and test it. The decision is with the judge who will issue the warrant, who will hear the case from the RCMP or CSIS, or the police to do the right thing in the interests of the country. I have great confidence in that. I believe in the rule of law. I think it can be applied. Do you want to add to that, Mr. Oscapella?

Mr. Oscapella: I raised the passage from yesterday's Globe and Mail by Kirk Makin because there will be enormous pressure to sacrifice or abridge privacy rights over the coming months. If we look at the history of the abridgement of rights in society, it is rare that once a right is taken away or abridged, it is reinstated. That is the real danger right now.

The short-term reaction to the events of last week, as horrific as they were, will be to swing the pendulum too far. It may be difficult to get the pendulum back to where it should be, in the centre. The danger is that we will abridge rights and not have a vehicle for challenging the excessive abridgement of those rights. We accept that there are needs for limits. There may be extraordinary measures needed in some circumstances to deal with extraordinary threats. Nonetheless, we want to have a template by which we can measure some of those abridgements.

Senator Roche: Senator Finestone, is it a correct depiction of your argument to say that, in the light of New York and Washington, you believe that rather than those events slowing down your bill, it gives an added impetus toward the advancement of the bill?

Senator Finestone: To those who propound the theory that privacy is dead, I would say, Get used to it. You better start thinking that privacy is vital. Apply it. That is my sense of things. It is more than urgent. I was very concerned, Senator Roche, about coming forward with my bill at this time. However, I read many newspapers on my flight home. I read the French media, the British and American media. It is very obvious that we need privacy protection more than ever before.

We are an amazing democracy. There are few countries in the world that are like us. I hope that is a value we never lose. I hope it is a place in society we will always maintain and, in a sense, be a role model.

Senator Callbeck: Senator Finestone, I would like to hear some specific examples of the abuse or infringement of individual privacy rights that are not addressed by the current legislation, but will be covered in your legislation.

Senator Finestone: First, it is limited in its application right now. If you look at what sections 7 and 8 cover in terms of privacy rights, they are very specific and very limited. Most of it is applicable to people who have been in the criminal system. It does not cover the general society, which is very important.

Second, when we toured Canada to hear about the problems around privacy rights, we heard serious concerns from a health perspective. For example, who got to know about your health and who got to know about the potential for a serious disease that was part of your family history but did not necessarily mean that you would end up having that disease. It was part of your DNA - that is, the particulars in your family history. How many people got to know that? What was the protection of the insurance company who had that information, who shared it with the bank, thus possibly affecting a mortgage application you have made? It might affect your job promotion. It might affect the place that you would have in your own society and having children.

There were a whole series of health issues. I wish I had remembered to refresh my memory in that regard. However, the health issues were serious. The financial implications and the subsequent impact on your loans, your insurance and your pensions could be negative. These were some of the areas.

There was also concern about the potential for eavesdropping. Someone in the United States let the cat out of the bag in terms of some kind of work that they were doing. If it was legal, then that was fine. If it was illegal, that was not fine. Some of us have a keen memory of listening devices and their impact on the Constitution under Mr. Bourassa. I cannot do better than that right now.

Valerie Steeves, whom you will hear from shortly, can give you some specific examples in that regard. I would hope that you would hold that question again and ask Valerie Steeves, who will be one of your witnesses.

Senator Callbeck: The health information that you mentioned and the problems that it can create, is that not covered now under our current legislation?

Senator Finestone: No, it is not adequately covered. I sat in on this committee with your chair. We had quite serious discussions on this matter. We discussed how they gathered and cross- referenced information when data collection was completed.

There is no protection when you buy your drugs from the pharmacy, and the pharmacy shares that information. That information is compiled. They know more about you than you do. They know more about me than I want them to know, including my shopping habits and where do I my buying and what kind of pills I have got and what they are used for.

Is that something we want shared in the general public? Can we control it or not?

I believe your committee will be addressing those questions shortly. Does it fall under Bill C-6 or does it fall under a general privacy right?

Would you add to that, please?

Mr. Oscapella: Senator Callbeck, I might also add that this privacy charter may come into play with surveillance of legitimate democratic activities that may, in this time, be considered threatening. We would use this as a template for measuring that.

Let us look at the issue of identity cards. It is possible that the Charter - the constitutional charter - could be interpreted to protect people from the imposition of the duty to carry identity cards, but it may not be. This legislation provides the sort of template to measure those sorts of intrusions.

Look at issues such as e-mail and Internet access by government agencies. Look at the right or restrictions on the use of encryption. It may be appropriate to limit encryption in some circumstances, but we want a template to test those sorts of intrusions. This bill could do that in terms of the relationship between the federal government and the citizens of this country.

The bill has another component, which is the federally regulated private sector. That is probably not the privacy issue of the moment in the minds of most people. The privacy issue is the definition of the power that the government would have in order to deal with the perceived threat of terrorism. Some of these things that I have mentioned - identity cards, access to e-mail, Internet communications, rights to control access to encryption, or to require people to give a back door key to encryption to the authorities - are all issues that should be assessed.

They are not necessarily in the context of criminal investigations. It could be in the context of a more surveillance- intensive society. I do not know if the limited Charter protections that have been offered under sections 7 and 8 would actually be broad enough to cover of these issues. That is what we are trying to do.

We are not saying that in some circumstances it is not appropriate to conduct surveillance. We are not saying it is not appropriate to give access to encrypted messages. We are saying that this is a test that we could use to determine if such access is justified, instead of using intrusive measures as the foundation for dealing with events such as happened last week. There are many other ways of dealing with terrorism than by clamping down on the civil liberties and the basic human rights of the citizens of a society.

Senator Morin: I also would like to congratulate Senator Finestone for her work in promoting such an important principle.

Especially at this time, Canadians will want to be sure that such a declaration does not compromise their own safety in the light of recent terrorist attacks. I realize that there are other ways, but if they have the impression that what we are doing compromises their safety, it would be harmful.

Health information is a very important issue. I hope that we will have the opportunity to come back to it.

The efficiency of our health care delivery system is increasing ly based on access and integration of personal health care information. If we put major limits on it, our health care system will suffer. There is no doubt about that.

Senator Finestone: I agree with you, senator. That is why you need to have something to articulate that procedure that you are going to take. It proves that it is in the best interest of the citizen. It proves that it was knowingly undertaken in the interest of that person who gave permission. The test would show that it is reasonable and justifiable in a democratic society.

There is a series of restrictions, directions or guidelines and values and principles that are inherent in the structure of this bill. They are reasonable in a democratic society. I, as you, do not want to compromise the safety of myself, of you, of my children and particularly my grandchildren. There is reason, and I think it is a justifiable reason.

I had cause to be involved with the RCMP in a minister portfolio. I value their role, assistance, guidance and their undertaking. It is vital, in a democracy, that you have the systems in place that protect that democracy.

There is nothing that people of ill will dislike more than an open and democratic society where there are rules and that people live by the rule of law. If you work internationally, you see the number of wars and the treatment of people around the world. It is discouraging. Then you see that there is a challenge to this fundamental way in which we live, of course, I want to protect it.

However, I want it protected in a way that is typical of Canadians and North Americans, in a decent kind of way. The openness of that surveillance should be understood. If it needs to be closed and private, it should be done through the courts, through a warrant, and an understanding of what is acceptable.

I believe that you will be dealing with the knowledge of a person's health and the system for their health. I know that you are certainly involved in considering that. I am sure that when your committee deals with the business aspect of health you would be looking at what information is being gathered. You will look at whether that information is gathered in Canada in a certain way, but their business is being done in the United States, where it is covered as well. These are critical issue that touch the lives of Canadians. I hope that it will be examined through your committee.

I am not interested in having someone know my family history. If I want people to know, I will tell them. I did not ask someone else to come in and decide to unveil who I am. No one has the right to do that in our kind of a country.

Senator Morin: As I said, I that hope we will have the opportunity to discuss this at greater length. I agree with the principle. It is when you start getting into the details that the arguments arise.

Senator Finestone: I cannot wait for us to get to the detail part. I hope that the Minister of the Department of Justice and the Privacy Commissioner will see that it is a good idea to go further and conduct a study.

Senator Cordy: I, too, would like to thank you very much for coming before us today. I know that you have certainly been an advocate in ensuring that Canadians have a right to privacy.

My question follows Senator Roche's comments earlier. In late February or early March of this year, Canadians were aghast when they discovered that customs officials were opening and photocopying mail addressed to immigration lawyers.

Canadians were aghast at that time. I am not sure that this week they would be aghast if they were to discover that. You said that we can not be driven by fear to abandon values, particularly privacy. I think that we would all agree with you.

How do we balance the need to protect Canadians with the need and the right that individuals have to privacy?

Senator Finestone: Well, I would that the ministers of this country are in place to protect Canadians. The most difficult times and the most important tests come under circumstances that are not always favourable. When you must do something, you must just do it. That is important.

As I said to you at the outset, I was very nervous about bringing this forward at this time. The more I read, the more determined I was that we not be blocked by narrow vision and by personal interests. It will be because we, as senators, have decided that we believe that there is cause for us not to move forward with this. That is how we should proceed in this matter.

The courts often look to the intent of legislation when drafting laws and when interpreting the extent and the measure of rights of individuals versus the right of the state to intervene. Bill S-21 provides a guide, and that is its whole purpose. We do not define privacy in our Constitutional right, but we have signed the international instruments and then ignore them in language.

Therefore, the bill provides that guideline for the direction that we are taking in respect of what we stand for in standards, values and procedures. It is up to the courts to assess on a case-by-case circumstance if a situation is right or wrong.

At the moment, there are no rules or regulations for the courts in the defined terms of privacy. It is true, however, that the courts will probably pass judgments that are different today than they would have been 15 years ago. There was not the same level of technology then. There were no cameras watching people come and go everywhere. There was no visual image of faces, so that you could pick a face out of the crowd. Maybe that is a good thing and maybe it is a bad thing.

It would depend on who is using the information. Are there terrorists using it, or are the RCMP and other police using the technology? Who owns the information, and who has the right to rerun it? Those are all serious issues. I do not know the answers, but I know the questions, in some instances. I believe it is our responsibility to protect our privacy rights, and then let us see how far those rights extend. No time is more important than now.

Senator Cordy: I would agree with you, thank you.

Senator Finestone: Thank you, you have given me more time than I expected. You asked tough questions, and I hope that they will help us in our deliberation. I urge you to pass Bill S-21 in the Senate and send it off to committee, where we can study it clause-by-clause to make the needed changes.

The Deputy Chairman: Our next witness is Mr. George Radwanski, Privacy Commissioner of Canada.

Senator Michael Kirby (Chairman) in the Chair.

The Chairman: Thank you attending today, Mr. Radwanski. I notice you have been listening to Senator Finestone's comments. If you can proceed with your opening statement, we will be delighted to ask you some questions.

Mr. George Radwanski, Privacy Commissioner of Canada: I guess I am becoming a bad habit for this committee, having been here both last night and today.

The Chairman: You should not be too optimistic and think that this is your last appearance, because I suspect Bill C-6 may return, in which case, we will see you once again.

Mr. Radwanski: Honourable senators, I am always at your disposal, and we should do this more often.

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 kinds of security threats that we now face do 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.

It is a good balance. I believe that the Privacy Act is particularly pertinent, of course, to the activities of government in preserving security. It 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 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 invasive measures, and so forth.

These principles are already well enshrined in our law, and, speaking 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 Finestone's Bill S-21 is an important one. That intent, as I understand it, is to fill a 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' Universal 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 someone who, 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 4, 5 and 6, 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 complain 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.

This is fine. 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, judgments 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, it would expose the government and private sector entities to an entirely new array of costs and complications, because in addition to 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 of Bill C-6. I am already hearing great concern from 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.

Senator Finestone: I thank you for your presentation, and I am glad to sense a degree of support in some directions. I found your observation about the confusion and parallel track interesting, and perhaps you are right. However, I will not be sure until I hear all sides of the question. Yours is only one voice, not all of the voices out there. I would like to know more about the conflicting jurisdiction principle and the confusion.

You had asked me to consider clauses 4, 5 and 6. I did consider them and I did find out if we could remove them at that point, and I pointed out in my observations that the advice was no.

Second, a consideration of rights and the right to redress if rights are not met is an important call. Do you believe that both bills for which you have responsibility are enough to cover all Canadians in all walks of life and under all circumstances?

Mr. Radwanski: I believe that they are enough, to the best of my knowledge so far, to cover Canadians in circumstances that are under federal jurisdiction, which is all that is possible for your legislation to cover as well.

I believe with the tools at my disposal, and with the new ones coming on stream, your concerns, for example, about health privacy will be addressed as of January 1 under the PIPED Act. I believe we have laws that are effective, and I feel we should be careful not to undermine them by doing something that is not sufficiently well considered, however well intentioned.

This is not to say that I oppose the intent of your law, but what is appropriate to have instead is a law which you might have put forward - and which I had hoped you would after our conversation - which focussed on requiring that the laws of Canada, passed or new, are in conformity with privacy rights. That would have nicely complemented the work that I do under the two pieces of legislation that we have.

I am somewhat troubled. You have not done this directly, but there is an implication in much of what you say. Certain self-appointed privacy advocates - one of whom the committee will be hearing from - have been taking the view that not to be fully supportive of this piece of legislation is some how not to be supportive of privacy. It is important to protect privacy, obviously, but it is crucially important to do so in a way that is effective and does not have the unintended consequence of weakening privacy rights when one is setting out to strengthen them.

Senator Finestone: Following your evaluation and your analysis, you are of the view that, had this been a declaration or some kind of different kind of bill - that is, if clauses 4, 5 and 6 had not been in there - it could have been a complementary factor for the work that you believe still remains to be done. Do I understand that correctly?

Mr. Radwanski: That is correct. That is the conversation that we had in February. At the time, you agreed with me. My view was that if this bill were to focus on the issue of ensuring that the laws of Canada are consistent with the principles enunciated in your bill - and, of course, that would be for the courts to determine - that would be great.

It is when you stray into making individual complaints about alleged violations of individual privacy rights, litigatable in court, that you risk undermining - with the best of intentions - the thoughtful and careful edifice of privacy law that has already been built up.

Senator Finestone: As I understood our conversation - and I think I understood it quite well and I wrote you to that effect - you asked me to consider removing clauses 4, 5 and 6. That is precisely what I am prepared to envisage if that is the view of the Senate committee.

I am no longer the owner of that bill. This bill belongs to the Senate of Canada. It does not belong to Sheila Finestone. That must be made eminently clear. It is up to this Senate to make a decision and - perhaps wisely after listening to you - remove those three clauses.

My sense was that it would be important for you to understand that this would be a complementary bill. You have made your point about where there are problems inherent in the approach that we have taken. Fine. Come and make them before the Senate as they are discussing this bill and put into place what you believe will help re-establish and reaffirm and affirm privacy rights for Canadians, which I believe to be under jeopardy and under threat under the present circumstances more so than ever before.

Mr. Radwanski: I am certainly not here to criticize you and I hope that is not how you are taking the remarks that I am making. The difficulty I have is that I can only, at this time in these circumstances, comment on the bill that is before me. For the reasons that I have articulated, I have no choice but to most vigorously oppose this bill in this form.

The concern I have is that, if it continues making its way through the legislative process in this form, it is sending a very confusing message as to the direction in which the government might be moving. Certainly with regard to the credibility of Bill C-6 and the PIPED Act, this will cause very serious problems. I have no choice but to articulate these concerns.

I also would emphasize that we must be careful not to create a self-fulfilling prophesy in terms of privacy being under threat. Certainly there are journalists who correctly want to raise the issue that privacy may be under attack. However, I am heartened by what I have heard the government and certainly the Prime Minister say in terms of not throwing Canadian values or Canadian rights out the window. It is my determination to be vigilant to ensure that does not happen.

As opinion leaders, we must exercise some care not to feed a perception that the sky is falling as far as privacy rights are concerned, because it might become a self-fulfilling prophecy.

Senator Finestone: If I may finish one comment, it is important to place this on the record and for senators to know this. From the day I started to write this bill, I went to the Ministry of Justice and I went to the Privacy Commissioner - you were not the Privacy Commissioner at that time.

I asked for their support. The Privacy Commissioner was outstanding in his support and he had me remove things that would have made this an illegal bill. He recognized the constraints under which we worked. The Ministry of Justice staff was totally incompetent and uncooperative. If they had the sense of what you are telling me now, we could have avoided this problem, if it is such a problem.

I tend to agree, if you are saying that these are the things that you are hearing and you have seen. They must be addressed, but they must be addressed in a committee. I do not see where that will cause the kind of problems to which you allude with respect to Bill C-6 - which has enough problems as it is - or with the application of the issue of health rights.

I thank you for your presentation from my perspective. I do not think the confusion is enough not to take a look at why Canadians cannot be assured that they have privacy rights under the law.

The Chairman: Next, we have a panel of two witnesses, both of whom are lawyers. Ms Steeves is Director of the Technology Project for law and social change at Carleton University and Elizabeth Sanderson is the Senior General Counsel in the Public Law Policy section of the Department of Justice. I know you both have done quite lengthy briefs. I would ask you to focus on effectively doing a précis of your argument so that we can then go directly to questions. I would like to begin with Ms Sanderson, please.

Ms Elizabeth Sanderson, Senior General Counsel, Public Law Policy Section, Justice Canada: I will try to be more specific in my comments than in the original presentation we had prepared. We had prepared our comments around the four issues that you had raised earlier this morning. I will try to focus on those questions as I go through my comments.

My colleagues at the Department of Justice view this bill as the end product of the hard work and dedication of Senator Finestone. She is to be commended for her work in this important issue.

The approach she has taken in this bill is a novel one and attempts to change the paradigm of our thinking about privacy.

What is privacy? In many countries it has been linked to data protection and that is very much reflected in our Privacy Act that we have heard about this morning. Elsewhere it has been seen as a demarcation line setting out how far a society can intrude in individual's affairs. We see this very much in the area of the Criminal Code protections for things like search and seizure and warrants for wiretaps, and so forth. We can speak of bodily privacy, territorial privacy and informational privacy. As Senator Finestone points out, privacy may be referred to as a fundamental human right.

I would like to direct my comments to the notion of the existing privacy regime at the federal level, in part going into the provincial level to give the senators an idea of our sense of existing protection of privacy in Canada.

[Translation]

How do Canadian laws and courts protect privacy in Canada? The Supreme Court of Canada has already interpreted the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution, to include the right to privacy. In addition, a number of other pieces of legislation complete the current privacy protection system in Canada, such as the Criminal Code, the Privacy Act and the Personal Information Protection and Electronic Documents Act.

Although the Canadian Charter of Rights and Freedoms does not say so explicitly, the courts have recognized that privacy interests are provided for under sections 7 and 8 in particular. For example, section 8 says that "everyone has the right to be secure against unreasonable search or seizure" and has been construed to protect a person's reasonable right to privacy.

[English]

I refer to the case of Hunter v. Southam case, where the courts speak directly to the right of privacy as being covered by section 8 of the Charter. There are other paragraphs in my brief that speak to section 8.

This is not an academic theory for lawyers and the Department of Justice. In section 4.1 of the Department of Justice Act, the Minister of Justice is required to review all legislation from the perspective of conformity with the Charter. We have a unit in the Department of Justice - the Human Rights Law Section - whose primary job is to advise government departments on Charter questions and their work emanates from this responsibil ity in the Department of Justice Act. That includes sections 7 and 8 and the regime that is foreseen in sections 7 and 8, including privacy.

Next I would like to talk about some of the Criminal Code protections. The government took into account a number of these Supreme Court of Canada decisions dealing with privacy, special procedures and powers - Hunter, Duarte and Dyment - when it amended the Criminal Code in 1993 to better protect the privacy of persons when their private communications or private activities become of interest to the state in the investigation and prosecution of offences.

Before 1993, a person, including a law enforcement officer, could be considered as consenting to having his conversation with another individual recorded for the purposes of an investigation. However, as a result of the amendment to the Criminal Code in 1993, consent of the law enforcement officer is not sufficient. Officers must now seek and obtain approval from the courts before engaging in electronic recording and tracking operations.

[Translation]

With respect to federal laws dealing with privacy protection, the Privacy Act protects individuals by controlling the collection, use, disclosure and storage of personal information by government institutions. Its purpose is to limit the collection of personal information to that which is needed for program or service delivery and to allow that information to be conveyed to other departments and governments only for the sake of consistency.

Its supplementary, the Personal Information Protection and Electronic Documents Act creates a similar right to privacy protection but in the private sector. To be more precise, this act requires private sector organizations to obtain consent to gather, use and disclose personal information.

[English]

I will not go into the details of the so-called PIPED Act - we heard the Privacy Commissioner speak to it this morning. The important question here is that it involves harmonization of federal and provincial laws and that law has taken the federal jurisdiction as far as it can in terms of the trade and commerce power. Various departments are working with the provinces to enhance the harmonization, particularly in the health information area.

I will now move to the impact and problems that we have seen with Bill S-21.

Bill S-21 would create a good deal of uncertainty and quite possibly may pose obstacles to many government programs and policy. This bill raises doubts about the legality of statutory enforcement regimes currently in force and in compliance with the Canadian Charter of Rights and Freedoms and other relevant legislation.

The statement of principles in a declaration of intent is acceptable, and we can agree with the sentiments of the preamble to this bill. I can assure you all those at the Department of Justice who work in this area are sympathetic with the sentiments in that preamble.

Privacy is extremely important as is reflected in the Canadian Charter, case law and other federal legislation that I have mentioned earlier. However, it would be necessary for government departments to apply this bill and the courts would have to interpret it. The law is a rigorous discipline. Language that is not precise may cause great problems and complications in implementation and interpretation that may not have been intended. I would like to give some examples of this.

[Translation]

What appears to be a broad reaching application raises a fundamental problem. According to its current wording, the bill appears to cover not only government institutions and federal undertakings, but also individuals generally. If individuals infringe the text of Bill S-21, by engaging in surveillance activities with respect to their property, for example, then under subsection 4(3), they run the risk of being prosecuted under section 126 of the Criminal Code. Even if Bill S-21 were amended to restrict its application to federal organizations and government institutions, or just to government institutions, federal departments would still have trouble fulfilling their mandate under Bill S-21, particularly with regard to property surveillance activities, and possibly security activities.

Given the apparent broad scope of the bill, we are unsure under which heading of constitutional jurisdiction Parliament intends Bill S-21 to come. This question was debated when Bill C-6 was tabled in the House under the federal authority to regulate trade and commerce, which is conferred on the Parliament of Canada under subsection 91(2) of the Constitution Act of 1867. So the question is: is the true nature of Bill S-21 a matter of federal jurisdiction, provincial or both? If Bill S-21 is not supposed to be a criminal statute, then which is the correct heading of constitutional jurisdiction?

[English]

The bill states that no person shall unjustifiably infringe an individual's right to privacy, and that that infringement on an individual's right to privacy is justifiable, if it is lawful. This differs from the current laws, where a person, including the Crown in some circumstances, is free to act unless the action is prohibited by law. This recognition that one can do as one sees fit unless a democratically elected body has decided otherwise is a cornerstone of our notion of freedom and liberty.

However, a review of this bill seems to indicate that the reverse could become the norm. It would be that a person would not be able to act in some circumstances unless Parliament or the courts have previously deemed the proposed action lawful.

This was raised in the press this summer and concerned public safety on federal property, including parking lots. If a government department received complaints about safety in a parking lot under its control, and decided that video surveillance would reduce the threat of harm, under this bill it would first have to meet the tests set out in clause 5, including ensuring the lawfulness of the surveillance.

[Translation]

Only rarely and with great caution do our laws resort to this type of technique, where the burden of proof is reversed such that the person concerned must prove that an act is lawful; the person cannot merely assert that the act may be committed unless it is unlawful.

[English]

The same section includes additional tests. For example, clause 5(3)(c) states that one must demonstrate that the objective cannot be achieved by any other less intrusive means, which appears to borrow text from judicial interpretations of section 1 of the Canadian Charter. How would this impact on legitimate law enforcement activities? Would search warrants, for example, need to meet the test in clause 5, in addition to the strictures currently in place in the Criminal Code? All of the law enforcement procedures could be thrown into confusion.

A cursory review of our Criminal Code demonstrates that, over the years, a fine balance has been struck between the interests of the individual and the interests of society. We have been informed that departments involved in law enforcement are very concerned that the bill may affect adversely their activities, which were approved by Parliament or are in accordance with common law, and may set different standards than those set out in Bill S-21. I would add they would have gone through the review process in respect of the Charter, as well.

[Translation]

This brings us to the paramountcy provision. That would give Bill S-21 quasi-constitutional status and would place it above the Criminal Code and other special federal statutes, thus disturbing the harmony that Parliament has already established between the specific needs of departments, which must fulfilled their obligations under acts or regulations aimed at protecting the public, and the individual's rights to privacy.

Bill S-21 could turn out to be a source of confusion and uncertainty in a number of other areas of the law. For example, the case law with respect to the Charter of Rights and Freedoms, which is highly developed, has established well-considered concepts, for example, reasonable expectations of privacy, and has protected this right based on sections 7 and 8.

However, repeatedly, in Charter case law, the courts have stressed the need to take a contextual and teleological approach to determine the scope of Charter-protected rights.

Individual rights must be reconciled with the rights and interests of others. There are a number of circumstances under which a social value may conflict with other values. The conflicting interests on which the courts may have to rule are not always a matter of individual privacy rights and public safety.

Take, for example, an accused's right to full answer and defence versus a complainant's right to privacy. As another example of conflict, there is the individual right to bodily privacy and the risk of harm to the most vulnerable members of our society, as the Supreme Court of Canada noted when faced with the bitter dilemma of deciding in Rodriguez whether to uphold the validity of the offence of assisted suicide under the Criminal Code.

There is a serious risk that the bill will hamper and confuse the teleological approach taken by courts when applying the Charter. In our opinion, it will not allow an interpretation that takes into account the relevant context and weighs various and conflicting values in many situations.

[English]

It is reasonable to assume that the test in the senator's bill for balancing the right to privacy versus the public interest may be interpreted differently from the Charter. As a result, many areas of law, well defined right now, would need to be re-litigated. The cost of this exercise, in time and dollars, both public and private, could be exorbitant.

Let me give you a concrete example where the bill could affect departmental legislation and operations. Citizenship and Immigra tion Canada (CIC) collects a great deal of personal information relating to immigration applications and to the enforcement of deportation orders and immigration offences. Bill S-21 would potentially require CIC to defend its information gathering and sharing activities in court under the Bill S-21 tests. To be safe and to avoid litigation, CIC would likely be forced to have all its current information-gathering activities included in regulations made under clause 7(1)(b) of the bill codifying practices that are "justifiable" infringements.

This would require, I am told, complex and lengthy consulta tions with CIC and other information-gathering departments before such regulations could be drafted. Those regulations would have to be prepared before the enactment of the bill, that is, within one year.

Honourable senators, other issues arise with respect to this bill, such as the uncertainty around remedies and the role of the Federal Privacy Commissioner.

In conclusion, while Bill S-21 can be praised as intending to enhance the privacy of Canadians, the devil may be in the detail. Changes could come at the expense of certainty, public safety, operational efficiency and fiscal responsibility. Supporting privacy should not lead to an erosion of other values in our society, and the balance that Parliament has achieved in other pieces of legislation.

The honourable senator's desire to broaden and strengthen privacy protection is worthy of our serious consideration, but there is more than one solution. We currently have the Canadian Charter and case law, as well as the other pieces of federal legislation. We cannot say that we are without privacy protection.

[Translation]

We do not believe that Bill S-21 clarifies privacy legislation. And now more than ever, we need certainty, after the events of last week.

[English]

We fully appreciate that Bill S-21 gives us a sighting on the horizon - a point of reference for the government's future work. We are already using Senator Finestone's work on Bill S-21 to inform the government's work in the area of privacy reform. We will no doubt profit from the debate and discussion around this bill as we proceed.

[Translation]

The events that occurred on September 11, 2001, have made this debate even more important. Privacy protection and security have leaped onto the front pages of our newspapers and have taken top spot in our collective consciousness. In their search for leadership, wisdom and reassurance, Canadians have turned to their federal government.

[English]

In conclusion, I would like to quote the Minister of Justice during her intervention in the debate on Tuesday in the House of Commons. I quote:

As we search for effective means of security, privacy issues will be important. My department has been reviewing the privacy regime in Canada, and in the course of this work, the balance between the privacy and safety of Canadians will be a key consideration.

The Chairman: I will now turn to Ms Steeves. Ms Steeves, you have written an interesting paper which I found to be a good summary of many of the questions before us. If you could hit the highlights of the paper and then we would have time for a few questions, that would be appreciated.

Professor Valerie Steeves, Director of the Technology Project, Centre for Law and Social Change, Carleton University: Honourable senators, it is a pleasure to be here. If I may, I would like to take some of my friend's comments as a point of entry into this debate. Ms Sanderson has hit the crux of the debate. In her summary, she indicated that she was concerned that legislation that reinforces a position of privacy as a fundamental human right in this country will bring into question certainty, operational efficiency and fiscal responsibility.

Senator Callbeck asked earlier what harm this particular legislation address that is not covered by the pieces of legislation already in place. That is a good question because it refers us back to the facts of privacy legislation in Canada. There is a patchwork in place. We have pieces of the puzzle that deal with certain issues. Information as it is used in an electronic commerce environment is dealt with in Bill C-6. Collection of information by the public sector is dealt with under the Privacy Act. A fundamental notion of privacy and the relationship between the individual and the state is dealt with in the Criminal Code. The fundamental balance between the state's power to invade our personal sphere and the protections we require have some judicial oversight.

In other words, we have this patchwork in place. What is missing is an umbrella statement of principles. I would suggest to you that that is where Bill S-21 is properly placed, in this position of an umbrella statement of principles.

The paper I given provided to the committee is the culmination of about 10 years of legal research into these issues. It starts from the position of asking, what is privacy. Perhaps it is more effective for us to ask, why privacy? If you go through the case law that has been developed by the Supreme Court of Canada and the academic material that has been developed around this issue, we really look at privacy from four different points of view. We call privacy a fundamental human right, because it is an essential piece of our sense of autonomy in a free and democratic society. We call privacy a social value because we know that without some control over what people know about us, it is impossible to enter into relationships of trust. That is a foundation of Bill C-6, is that without trust in the electronic marketplace, we cannot proceed and benefit from the advantages of this new form of commerce.

We also see many statements in the jurisprudence that privacy is an essential democratic value, because if we cannot maintain a sense of self and personal domain, we will be much less likely to exercise our other fundamental human rights. If the government has cameras outside the street that can digitally capture your face and identify you and pull up all of your records all within seconds, you are much less likely to exercise your right to free assembly or free speech, and attend a political event, for example.

The last strand in the literature and in the legislation, more than the case law, is that privacy has to do with data protection. The crux of the issue here is that in some of our patchwork pieces, we have said this information is flowing all around us, we need a set of rules that we can devise that will give us some sense of control, some sense of balance in the way information flows and our right to a private life.

In other words, we have developed a number of policy mechanisms from the Criminal Code, the Charter, the specific statements of restrictions on the Customs and Revenue Agency's ability to get information from us; all these pieces of the puzzle are there. The question then becomes what language do we use when we seek to understand these different pieces of the puzzle? What foundational principles do we apply? Do we worry about certainty, operational efficiency or fiscal responsibility as our primary focus, or do we look at the importance of privacy as a fundamental human right, its role in securing our autonomy as a democratic value, or its role in sustaining the democratic nature of a free society that we all enjoy?

I would suggest to you that there is a tension there. My friend has also suggested that this will lead to a great deal of uncertainty. She indicated that this would require the government to sit down and review all of its activities.

Again, it depends to which value we are trying to give paramountcy. If we are trying to establish the most efficient way of controlling citizens, exercising methods of social control and delivering government services to consumers of those services, a free flow of information and an ability to cross that private line with a great deal of ease makes sense. It makes things easier.

Does it make things less democratic? This legislation hits the issue right on the head of the nail because it brings us back to first principles. How will we look at Bill C-6 and bring that into some kind of meaning as we go into the next few years? How will we review some of the programs that we see being put in place by the government right now?

This proposed legislation brings us back to the fundamental principle that these things do play an essential role in our democracy. We are talking about a human right. In that sense, it fills the gap that was so well described in the 1997 report, "Privacy: Where do we draw the line?" In that report, the House of Commons Standing Committee on Human Rights and the Status of Persons with Disabilities argued that we needed an umbrella statement of principles so that we could then look at the missing pieces of the puzzle, and there are many missing pieces. We must deal with genetic privacy in the next few years. Medical privacy is a huge issue and Bill C-6 will not cover it entirely because that only captures information that is processed through commercial activity. We must deal with questions of terrorism and responses to hateful acts of violence. All of these things must be done; all of these pieces of the puzzle must be drafted.

We will be in a stronger position to do that if we can rely upon the language of human rights. The way we ask this question will determine the kinds of answers we get. If we use the language of efficiency and the language of fiscal responsibility, then I suggest to you that we will willingly cross the line of privacy because it is far more convenient. If we use the language of human rights, I suggest to you that our debate will be anchored in the principles of democratic freedom.

I will be happy to entertain questions. I would be happy to enter into a discussion with my friend, since I am sure she has some responses she would like to make.

The Chairman: We will begin by asking Ms Sanderson if she has a rebuttal, and then I will open the floor to questions.

Ms Sanderson: Just two quick comments. First, the comments of the Department of Justice today would be quite different if we were talking about an umbrella statement of principles. We are talking about a bill, the second clause of which talks about an act to give effect to certain principles, and the provisions of the bill that follows that are intended to give legal effect to those statements of principle. That is the first point I would make.

Again, I would also refer to the Minister of Justice's comment on Tuesday. There are many interests in society. What we are talking about is not putting a focus one over the other, but finding the right balance between these various interests in society. Security is very much part of that balance in relation to privacy. I think the word is balance more than one over the other or using any sort of trumping of one interest over another.

The Chairman: Section 1 of the Charter was designed precisely to allow that if you want trade-offs to be made.

I want to pick up on a point and, because it was a question, I would like to hear from both of you on it. Obviously, there is a difference between a bill and a statement of principles. Are there mechanisms in which one could get a statement of principles adopted by Parliament, for example, which would not necessarily have all the force of law and therefore not necessarily create the problems that the Privacy Commissioner and the Department of Justice have outlined? In other words, is it possible to meet the objective and to have a clear parliamentary statement on the divorce of privacy and what that means without having the complicating factors relating to existing legislation?

Ms Sanderson: I assume you are asking me?

The Chairman: I was asking both of you. Let us hear from both of you.

Ms Sanderson: I am not an expert in parliamentary process and procedure. One of the ideas that we debated earlier, and in some of our discussions with Senator Finestone's staff, was the idea of a Senate motion or a joint motion of the House of Commons and the Senate. That has definitely an influence on our work. I have seen it in other areas. I cannot remember specifics, but I have seen examples where there have been motions of Parliament that are taken into consideration and can influence the work of officials and can be used by parties in a court setting, say. There are mechanisms but that is the one that comes to mind.

Ms Steeves: One of the most appropriate models might be to leave it in the form of a bill but send it on to a section-by-section analysis and, perhaps, remove sections 4 to 6 and replace them with something that is modelled on the Canadian Bill of Rights. Basically, that gives the courts the power to look at other pieces of federal legislation to see if they are in keeping with the principle set out in this bill. It would be very effective because it would enable us to assure ourselves that, as the courts look at the interpretation of Bill C-6 and other pieces of legislation that come into place in the next two or three years, they will be able to interpret them in a way that is consistent with these fundamental principles.

A joint statement of the two Houses of Parliament would be less likely to get into the courts. I understand that officials would be interested in reassessing their approach to their particular bailiwicks because of that type of joint statement, but my concern as a legal scholar would be that the courts be given the language, the impetus, the jurisdiction to extend some of the incredibly good thinking they have done through their interpretations of sections 7 and 8 of the Charter, for example, into other pieces of legislation such as Bill C-6 and the Privacy Act.

Senator LeBreton: With regard to sections 4, 5 and 6, the Privacy Commissioner, Mr. Radwanski, talked about an individual. That is to say, rather than a complaint to the Privacy Commissioner it could go directly to the court and end up with competing findings. This is a question directed to both of you. For those who support the bill, the Justice Department has problems with it. By removing sections 4, 5 and 6, would we then eliminate the concerns of the Privacy Commissioner about the competing findings? If they were removed, would we then remove any chance of those competing findings being in the system? What happens then if the Privacy Commissioner ends up saying one thing and the courts another? Who adjudicates after that?

Ms Steeves: I have had detailed discussions with the Privacy Commissioner on this issue. The position that he presented to me is consistent with the position that he presented here, namely, that if those sections were removed he would be far more comfortable with the bill and would give the amended bill his support.

I would step back, though, for a second, to be honest with you. Privacy is such a foundational value and right that it is woven into so many different parts of our legal system. If the police break down my door and take me off to jail, wrongfully, I will not be filing a complaint with the Privacy Commissioner. Chances are I will not even be relying on sections 7 and 8 of the Charter. I will sue them for trespass, all those types of torts.

In other words, when we see privacy issues come up, there are a number of different laws that seek to maintain these principles. It gets into the courts in a number of different ways. We simply do not live in a world where all privacy matters are funnelled through the Privacy Commissioner's office. That reflects the fact that we have different regulatory mechanisms available to us. This is such a foundational principle that it is woven into a number of them. Yes, for data protection a Privacy Commissioner is an essential recourse for the citizen, but it will not be the only recourse.

I would also be comfortable with an umbrella statement of principles that drew us all back to the importance of privacy as a fundamental human right. There are indications in the academic literature, for example, that regulation has its own problems attached to it. Often regulators enter into long-term negotiations with those they regulate. It creates a different political dynamic - not necessarily a good or bad one but less an independent one is the statement that we find in this particular piece of legislation.

The Privacy Commissioner's enabling pieces of legislation, the Privacy Act and Bill C-6 are pieces of the puzzle, but they are not the whole puzzle. They will not enable us to deal with discrimination that flows from access to genetic codes, for example. It is not a piece of information that is easily dealt with under fair information practices. It will not help us deal with employment issues. That is another missing piece of the puzzle. We can try to apply fair information practices, but they assume there is an equality of bargaining power. If I go to apply for a job and the guy I want a job from says, "I want to see your medical record," I can say no and not get the job. That is not an equality of bargaining power. If we truly want to protect our right to a private space, we must evaluate each of these different situations and come up with an appropriate legislative response.

It will never all funnel through the Privacy Commissioner's office, and that is a good thing. That is not to take away from the absolutely essential role that the Privacy Commissioner has in this country to advance privacy as a human right. In many ways, it is because we have had a history of Privacy Commissioners who have taken a great deal of responsibility as privacy advocates and who continue to raise these issues with legislators. In many ways, that is why we are still having this debate.

Ms Sanderson: I agree with Ms Steeves. The other thing we must talk about is the limitations on federal jurisdiction to deal with all these questions of privacy. Health information is a good example where we have to work hand and glove with the provinces. This is not something we can deal with ourselves. Another example is employment contracts or the situation between an employer and an employee. The federal government is limited in its ability to deal with those sorts of invasions of privacy except as an employer itself or with the federal Crown corporations or federally regulated private sector.

Your original question was: If we took out certain provisions would that be the acceptable statement of principles? I am a little nervous about that because, even within some of these articles, there is language that looks like it is giving legal effect to the statement of principles. I will give you a few examples that make me a little nervous.

In clause 2, it says that the purpose of this act is "to give effect to the principles that ..." It would become an act of Parliament if it passed, the purpose of which would be to give effect to. There is other language as well. I want to give you a few more examples.

Clause 6, which requires that the Minister of Justice review all laws from the perspective of this charter, does not meld well with the provision to which I referred earlier in the Department of Justice Act where we are already required to look at it from the perspective of the Canadian Charter? There are some constitutional questions as well. Clause 8 deals with contractual situations. That is only of limited application at the federal level because contracts are generally a matter in the provinces.

Clauses 9, 10 and 11 make me feel a little uncomfortable as well. Clause 9 refers to this act applying to all persons and matters coming within the legislative authority of Parliament. There may be room there for interpretation as to what the word "applying" means. Clause 10 refers to it being "binding" on Her Majesty. Of greater concern is the primacy statement in clause 11. If that became an umbrella statement of principles, it would give this bill primacy over other pieces of federal legislation.

We have had some trouble in that area already. One is the Canadian Human Rights Act, which, through judicial interpreta tion, in part speared on by the Charter, has been given primacy over other acts. In order to derogate from it, there must be a clear statement to the contrary. There is a question about how would this bill and the Canadian Human Rights Act or the Official Languages Act, which are both of a higher nature because of their fundamental place in Canadian society, play together?

I am not sure that we would necessarily be getting rid of the confusion by getting rid of clause 4, clause 5 and clause 6.

That is off the top of my head. It should receive more study.

Ms Steeves: I am encouraged because it appears that Ms Sanderson is anxious to enter into a clause-by-clause review of this piece of legislation. It is my great hope that she will have the opportunity to do that with you.

Her analysis is a good indication that we could look at the wording of this bill, address the concerns and make it better.

It is interesting that we are sitting down and saying that this legislation might derogate from the Human Rights Act. It seems to me that they are complementary statements of principles. Again, it is an issue of wording.

The fact that this is federal legislation and can only reach so far does not bother me at all, because you have a unique responsibility and opportunity to take political leadership that will raise the bar in this country. During the last 10 years we have seen that when one jurisdiction raises the bar, others seek to follow as well.

Quebec actually has proven that to be true in the Canadian context. When one jurisdiction acts, others follow. It is a time for political leadership, particularly because of the incredible challenges we see to our democratic system right now.

I would not be too disheartened by the fact that this is only federal legislation. I think it is an opportunity to exercise that leadership in a positive way.

Senator Finestone: I was not planning to ask a question but I would be encouraged if the Department of Justice, who had not been as forthcoming as I wished they had been, would like to join us in a clause-by-clause review instead of doing it behind our back. That would be very helpful.

The Chairman: Senators, we must adjourn soon. I request that for both last night's sitting and today's, staff prepare two things. One is a summary of the arguments on both sides as they have been advanced. Second, specifically with respect to last night, there were several additional pieces of information we wanted. One was a Justice Department opinion.

I also ask staff to think through the option outlined by Ms Steeves that talked about effectively patterning this issue after the Canadian Bill of Rights, so we could understand what that actually means in real practice. Once those two summaries are done, we will reconvene. We will meet next week.

Senator LeBreton: We already have quite a list of witnesses. In view of the events in the United States and elsewhere, there will be numerous witnesses that will want to be heard. There will be a lot of media attention on this particular legislation. Newspaper people are commenting already. I am warning you we could be in for a long serious meeting.

The Chairman: This is a serious issue and we should have a good complement for our meetings. We are adjourned until 3:30 p.m., Wednesday, September 26, 2001.

The committee adjourned.

Social Affairs, Science and Technology

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

Issue 25 - Evidence

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